Mother's Misdemeanor Due to Facebook
Jeanette Garza Alvarez from New Mexico was convicted of creating a public nuisance by posting a comment about the possibility of a shooting at her son's school. Alvarez was given a 30 day deferred sentence and ordered to pay $29 in court costs after she was convicted of a petty misdemeanor in her trial. Her defense attorney argued that her First Amendment rights were being violated and that he will be appealing the decision to State District Court. He believes that Alvarez didn't do anything wrong.
The criminal complaint said that Alvarez posted on her Facebook page that her son told her that several of his classmates were planning on taking guns to school and have a shootout. Alvarez responded to this complaint saying that the purpose of the post was to gather information, but there were 160 student absences in school the next day, in addition to over 100 phone calls to the school regarding the post.
Tom Burris, superintendent of the Roswell school district, said the post was inappropriate and spread rumors. He added that Alvarez should have contacted the school about the possible threat instead of posting on social media. Alvarez's attorney says that there is no law that requires a person to contact school officials rather than posting a question online.
The Roswell school district has had many bomb threats and other threats this past school year.
Comments from Allen:
This is an amazing issue for those interested in First Amendment rights. The right to speak freely is not absolute, but the ability to curtail speech or punish speech is severely restricted by the U.S. Constitution.
The most frequently-quoted example of the limitation upon the Freedom of Speech is the quote from Justice Oliver Wendell Holmes in his 1919 written opinion in Schenck v. United States that "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." That statement by Justice Holmes was made after many people had been killed during occasions when someone had falsely yelled "fire" in crowded places. The holding in Schenck was later overturned to limit the government's ability to ban speech when that speech is likely to incite imminent lawless action, such as encouraging a riot.
This case falls squarely in the middle. Ms. Alvarez did not appear to want to do anything but inquire whether others had information about this rumor she heard from her son. Just asking the question, however, caused panic, like the fictional stewardess in the movie "Airplane!" who, upon finding the pilot of a commercial jet has passed out, asks this question of the passengers over the intercom: "Excuse me, but is there anyone on board who knows how to fly a plane?"
When faced with facts such as these, always keep in mind there is a difference between doing something wrong and committing a crime. Posting a statement on Facebood saying "some eighth-graders are planning on bringing guns to school maybe Monday and have a shootout to see ‘who’s the first to die ’ ” is wrong.
Was it true? Who knows at this point? It is conceivable that this event did not occur because Ms. Alvarez made the plot public. One way of looking at this is that a Columbine-style shooting did not occur because the plot was exposed one day prior to its occurrence.
On the other hand, anyone with half of their grey cells should know that such information should go directly to the police, so they can investigate.
I personally have a hard time agreeing that this stupid way of handling a rumor about a planned shooting is also a criminal way of handling a rumor. There must be some criminal intent associated with the posting, according to prior U.S. Supreme Court rulings.
For this reason, I believe the U.S. Supreme Court would strike down Alvarez' conviction. Do I believe this case will go to the Supreme Court? No. Alvarez got a slap on the wrist. There is really no reason to appeal this case. Supreme Court appeals are extremely expensive, but I can see a lawyer doing this pro bono just to get a proper decision on the books. Even if a lawyer is willing to take this case up on appeal, it will not go to the Supreme Court unless the Court decides it wishes to hear the case. I think the Court has bigger issues to decide and will refuse to review whatever lower federal appeals court hears the case.
http://www.cbsnews.com/news/jeanette-garza-alvarez-mom-convicted-of-creating-public-nuisance-for-facebook-post/
https://www.washingtonpost.com/news/education/wp/2016/04/29/mom-convicted-for-facebook-post-about-school-shooting-rumor/
The criminal complaint said that Alvarez posted on her Facebook page that her son told her that several of his classmates were planning on taking guns to school and have a shootout. Alvarez responded to this complaint saying that the purpose of the post was to gather information, but there were 160 student absences in school the next day, in addition to over 100 phone calls to the school regarding the post.
Tom Burris, superintendent of the Roswell school district, said the post was inappropriate and spread rumors. He added that Alvarez should have contacted the school about the possible threat instead of posting on social media. Alvarez's attorney says that there is no law that requires a person to contact school officials rather than posting a question online.
The Roswell school district has had many bomb threats and other threats this past school year.
Comments from Allen:
This is an amazing issue for those interested in First Amendment rights. The right to speak freely is not absolute, but the ability to curtail speech or punish speech is severely restricted by the U.S. Constitution.
The most frequently-quoted example of the limitation upon the Freedom of Speech is the quote from Justice Oliver Wendell Holmes in his 1919 written opinion in Schenck v. United States that "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." That statement by Justice Holmes was made after many people had been killed during occasions when someone had falsely yelled "fire" in crowded places. The holding in Schenck was later overturned to limit the government's ability to ban speech when that speech is likely to incite imminent lawless action, such as encouraging a riot.
This case falls squarely in the middle. Ms. Alvarez did not appear to want to do anything but inquire whether others had information about this rumor she heard from her son. Just asking the question, however, caused panic, like the fictional stewardess in the movie "Airplane!" who, upon finding the pilot of a commercial jet has passed out, asks this question of the passengers over the intercom: "Excuse me, but is there anyone on board who knows how to fly a plane?"
When faced with facts such as these, always keep in mind there is a difference between doing something wrong and committing a crime. Posting a statement on Facebood saying "some eighth-graders are planning on bringing guns to school maybe Monday and have a shootout to see ‘who’s the first to die ’ ” is wrong.
Was it true? Who knows at this point? It is conceivable that this event did not occur because Ms. Alvarez made the plot public. One way of looking at this is that a Columbine-style shooting did not occur because the plot was exposed one day prior to its occurrence.
On the other hand, anyone with half of their grey cells should know that such information should go directly to the police, so they can investigate.
I personally have a hard time agreeing that this stupid way of handling a rumor about a planned shooting is also a criminal way of handling a rumor. There must be some criminal intent associated with the posting, according to prior U.S. Supreme Court rulings.
For this reason, I believe the U.S. Supreme Court would strike down Alvarez' conviction. Do I believe this case will go to the Supreme Court? No. Alvarez got a slap on the wrist. There is really no reason to appeal this case. Supreme Court appeals are extremely expensive, but I can see a lawyer doing this pro bono just to get a proper decision on the books. Even if a lawyer is willing to take this case up on appeal, it will not go to the Supreme Court unless the Court decides it wishes to hear the case. I think the Court has bigger issues to decide and will refuse to review whatever lower federal appeals court hears the case.
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Allen Browning is an attorney in Idaho Falls, Idaho who handles personal injury and criminal defense. He has over 30 years of experience and handled thousands of cases. Allen handles cases from all over Idaho. Call (208) 542-2700 to set up a free consultation if you are facing legal trouble or you have been involved in an accident.
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Sources for more information:http://www.cbsnews.com/news/jeanette-garza-alvarez-mom-convicted-of-creating-public-nuisance-for-facebook-post/
https://www.washingtonpost.com/news/education/wp/2016/04/29/mom-convicted-for-facebook-post-about-school-shooting-rumor/
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