The lawyer for a Texas teenager who is facing felony charges of making terroristic threats due to a flippant comment made on Facebook said today he is preparing a motion to have the charges against Justin Carter dismissed on First Amendment grounds.
Donald Flanary told Reuters he expects a hearing on the motion as soon as August 12.
"The First Amendment is a very important foundational right in our society, and the Supreme Court has said in a number of cases that in order for somebody's First Amendment freedoms of expression to be limited, there must be an actual threat," Flanery said.
In a case which has attracted worldwide notice and focused attention on the limits of free speech on the Internet, Carter, 19, was engaged in a Facebook discussion in February about the on line game 'League of Legends.' When another participant said he was insane, Carter typed, according to court documents, "I'm f***ed in the head alright, Ima shoot up a kindergarten and watch the blood of the innocent rain down and eat the beating heart of one of them."
A month after that incident, Carter's home was searched and he was arrested. A grand jury indicted him in April on charges of Terroristic Threat, a felony carrying a punishment of between 2 and 10 years in prison.
Flanary says that does not meet the legal definition of 'an actual threat' which the Supreme Court said was necessary in its 1968 Brandenburg Decision, which remains the defining standard for free speech. In that case, the justices overruled filing criminal charges based on 'fighting words,' and said that in order for any speech to lose its Constitutional protection, the speech must be 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action.' That has come to be known as the Brandenburg Test, or the 'imminent lawless action' test.
"It is clear and obvious from anyone who reads what he is accused of saying, there was no intent to threaten anyone, and the statement was made sarcastically," Flanary said.
He said Carter actually followed the statement with LOL and JK, Internet shorthand for 'Laugh Out Loud' and 'Just Kidding.'
Chicago Attorney Wayne Giampietro, who is a member of the First Amendment Lawyers Association, says the Brandenburg Test applies whether the speech is spoken, or posted on line.
"There is no reason why the settled First Amendment law should not apply with equal force to comments like this on Facebook," he said. "The only difference is the medium in which the comment was made. The rights under the First Amendment remain the same. I believe the attorney is on solid ground."
Carter's case has turned into a cause on the Internet. More than 75,000 people have signed a petition on the web site 'change.org' calling for the charges to be dropped.
"His response may have been in bad taste, but it was written in a non threatening way that didn't translate well on line," Carter's mother Jennifer Carter of Maitland Florida wrote on the petition. "None of his friends or family would even question his intention as anything other than a poor choice of words. My son is not a felon and terrorist as he is currently charged."
Flanary says an on line 'Good Samaritan' posted Carter's $500,000 cash bond and allowed him to be released from jail in Comal County, located along I-35 between San Antonio and Austin, last week.
"He is doing much better now," Flanary said. "He is so thankful to all people from all over the country who have come to his support."
Carter told CNN that his case shows that people should be 'very very careful about what they say on line.'
"If you say it on any website anywhere you can get in trouble for something that's not something you should get into trouble for," he said.
Comal County District Attorney Jennifer Tharp declined comment, but she released a statement saying that a 'defendant who has never previously been convicted of a felony may be eligible for community supervision or deferred adjudication.' She said in the statement she will have no further comment.
"We believe that we will be successful in having this case dismissed," Flanary said.