Can a Facebook Post Be Used As Evidence?
State v Craig is an interesting case that gives some insight into how New Hampshire courts will view posts on social media, such as Facebook, that are directed to someone who has a restraining order against the person making the post. The case centers around a waitress who got a restraining order against Craig, a man who started coming into her restaurant and making her feel uncomfortable. Craig would sit in the restaurant by himself and stare at her when she worked, and even mailed letters to the restaurant addressed to her. One of the letters told her that he was speaking about her on his Facebook page. This letter was sent before she got the restraining order prohibiting Craig from having contact with her.
After the police served the restraining order, the victim went online and looked up Craig’s Facebook page, where she found that he was posting long messages directed at her by name, even after he had been served with the order. She called the police and he was charged with stalking for violating the order of protection.
Craig was convicted after trial and appealed. On appeal he admitted that he was served with a valid restraining order, and he did make the posts on his Facebook page, but argued that the posts did not violate the restraining order because the victim took the affirmative step of going onto his page to read them and he did not send them to her.
The Court looked at two related issues to address Craig’s appeal. The first is whether Craig’s posts were an “action to communicate” with the victim; and the second is whether this act of communication counted as “contact” pursuant to the domestic violence law. The Court ruled in the affirmative for both questions and upheld his conviction.
Craig argued that the posts were merely public postings of his own internal thoughts and were not directed at the victim. The Court disagreed and found the posts were specifically addressed to the victim by name in a public forum that were intended to get back to her.
The Court went on to discuss how posting these communications amounted to contact even though the victim had to go onto Craig’s Facebook page to read them. The Court explained that the domestic violence law was intended to broadly apply to many forms of contact with the protected person. One of the cases the Court cited is O’Leary v. State, a Florida case in which the defendant was convicted of violating a restraining order by making a threat to his former girlfriend on his own public Facebook page. In that case a friend of the victim saw the post in his newsfeed and notified her about it. The O’Leary Court explained:
“When a person composes a statement of thought, and then displays the composition in such a way that someone else can see it, that person has completed the first step in [sending a message]…”
“[The defendant] reduced his thoughts to writing and placed this written composition onto his personal Facebook page….Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Facebook users. Had [the defendant] desired to put his thoughts into writing for his own personal contemplation, he could simply have recorded them in a private journal, diary, or any other medium that is not accessible by other people.” State v Craig, at 11 (citations omitted).
The Craig Court explained that Craig’s act of sending the victim a letter advising her that he was posting about her on his Facebook page, before he wrote the posts, was similar to O’Leary’s act of posting his comments threatening the victim when he knew her friends would see the alarming posts in their newsfeeds. The Court also cited Rios v. Fergusan, a Connecticut case that applied similar reasoning to a YouTube post that violated a restraining order.
This is an important case because it holds that New Hampshire law is very broad when it comes to what types of social media posts will violate an order of protection. The best advice is if you have been served with an order of protection, do not post anything about the protected person. If they see it, you will probably get arrested.