This is a post by Jonathan Rogers. Jon is a licensed attorney in California, with a focus on technology and entertainment law. You can reach him by email at firstname.lastname@example.org or follow him on Twitter at @jonarogers.
Holcomb v. Com., — S.E.2d —, 2011 WL 2183100 (Va.App., Jun 07, 2011)
Appellant challenged his conviction over posts he made to MySpace on his profile page, arguing that they did not constitute the knowing communications of a threat. He argued that MySpace posts were not the type of communication contemplated by the statute, and his postings did not constitute a threat. Appellant posted violent original lyrics which were clearly about his child’s mother.
Appellant had been convicted under a provision of Virginia law that provides:
Code § 18.2–60(A)(1):
Any person who knowingly communicates, in a writing, including an electronically transmitted communication producing a visual or electronic message, a threat to kill or do bodily injury to a person, regarding that person or any member of his family, and the threat places such person in reasonable apprehension of death or bodily injury to himself or his family member, is guilty of a Class 6 felony.
Appellant argued that he did not knowingly communicate the posts within the meaning of the statute because he posted them through his profile, which was available for anyone to view, as opposed to a communication aimed directly at the victim. The court found that there was no requirement that a threat be communicated directly to the intended victim. It instead focused on the fact that an “electronically transmitted communication” produced a “visual or electronic message” that could be viewed by anyone accessing the MySpace profile. It was enough that the victim was able to identify herself based on the references in his posts and that the appellant knew the victim had access to the profile. In fact, the court found, he knew she had viewed it previously.
Appellant’s second argument was that the posts were not threats under the statute. He argued they were lyrics which he had a history of writing and posting on his profile. The court disagreed, finding that because of specific references to the victim, and the unusual subject matter of the lyrics, the post contained statements that would place the victim in “reasonable apprehension of death or bodily injury.” The court pointed to actions taken by the victim, including moving in with her parents, and her testimony that she felt scared after seeing the postings.
The court found the online postings to MySpace where threats which placed apprehension in the victim. So the court upheld the convictions.