If you go on Facebook and threaten to post a sex tape featuring a public official, is that a threat or is it free speech protected by the First Amendment? The highest court in Georgia has overturned the six-year prison sentence of a man who said he’d share raunchy footage of a court clerk, mostly because said sex tape didn’t exist.

This case goes back to 2013, when the man was charged with failing to live up to his duties as a landlord. After he failed to show up for a hearing in the matter, a bench warrant was issued for his arrest.

That’s when the man went on Facebook and said that he had video footage of the county’s Deputy Chief Clerk having sex with him and two other men — even though apparently no such sex tape existed.

He also allegedly called another county official, a Superior Court Clerk, telling him that if he didn’t lift the bench warrant by a certain date, the landlord would “turn [the clerk’s] world upside down,” and that “you know what will happen on Facebook.”

Additionally, the man was accused of killing an ex-girlfriend’s cat and stuffing it in her mailbox. As the ex’s current boyfriend called 9-1-1 to report the dead feline, the man “drove by the house, slowed down considerably, rolled down a window, and pointed at the mailbox containing the dead cat before driving away.”

With regard to his sex tape claims, the man was found to have violated Georgia state law § 16-10-97 (a), which makes it a crime to “intimidate or impede any… officer in or of any court of this state… who may be serving at any proceeding in any such court while in the discharge of such juror’s or officer’s duties.”

But in his appeal, the man argued that this law is too restrictive of his First Amendment rights.

In the 2003 case of Virginia v. Black, the U.S. Supreme Court held that a local government can enact laws that restrict threatening speech without violating the Constitution.

“Intimidation in the constitutionally proscribable sense of the word is a type of true threat,” wrote the majority opinion in that case, “where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

In looking at the case of the Georgia landlord’s Facebook threats, the judges held [PDF] that there was no “true threat” in his sex tape ultimatum because no actual tape existed. Furthermore, he made the statements publicly on Facebook, not directly to the clerk.

In the end, the court found that “nothing in the communications threaten an unlawful act of violence to her as required by” the Supreme Court precedent.

What about the other clerk, who did receive direct communications from the suspect who promised to turn the clerk’s world upside-down. The clerk testified that he felt intimidated by these calls, but the court ruled that “he did not testify that his concern was related to any fear of violence,” and that the man made no reference to any form of violence in his communications with the clerk.

“While [the suspect’s] speech might well be described as caustic and unpleasant, it did not convey ‘a serious expression of an intent to commit an act of unlawful violence,'” explains the court.

The man then argued that he should not have had the intimidation charges tried at the same time as the animal cruelty allegations because “the acts alleged are not part of a single scheme or plan, are not based on the same conduct or series of acts, and are not of the same or similar character.”

The court points out that while the cat-in-the-mailbox incident and the intimidating comments made to the clerk happened within a couple weeks of each other, there was no obvious reason to connect the alleged crimes or “any indication that they were committed in pursuit of some common scheme.”

The state had argued that the killing of the cat was an attempt to intimidate a possible witness in a case against the man, but the court says the state never actually showed it had any intention to call the man’s ex as a witness in any claim against him.

“[T]here was simply no connection shown between the alleged animal cruelty and the alleged crimes of endeavoring to intimidate court officers,” writes the court, which ruled that the cases should never have been joined.

In fact, the court deems this joining of the cases as a “harmful error,” especially since it believes the intimidation charges should never have been brought.

“The prejudicial effect of having to defend the charge of animal cruelty when joined with dissimilar, unconnected charges is exacerbated when those charges are not themselves properly presented for prosecution,” explains the ruling.

However, the man could face a retrial on the animal cruelty charges. The court held that a jury “could have inferred from the evidence presented that [the suspect] trapped the cat, killed it, and placed it in [his ex’s] mailbox.”

[via Ars Technica]

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