Readers may have heard about prospective employers looking at candidates’ social media sites, but today’s story offers a new twist.

Specifically, a criminal defendant is appealing a conviction that resulted from rap lyrics he posted on his Facebook account. The man received a 44-month sentence under a federal law that makes it a felony to communicate threats about injuring another person.

The man’s wife at the time allegedly interpreted the postings to be violent. However, a criminal defense attorney would take particular note of several disclaimers included in the posts. In them, the man clarified that his posts were not intended as serious threats.

Unfortunately, some criminal charges apply regardless of the accused’s state of mind or intent. In this case, the trial judge ruled that the applicable standard was whether a reasonable person would view the postings as the man’s stated intention to inflict bodily injury. Since body cues or language cannot be observed from online postings, the man’s words were apparently taken at their face value. Unfortunately, a jury agreed that they were threatening.

The man appealed, and the U.S. Supreme Court is scheduled to hear the case in the fall. The man’s defense includes an argument under the First Amendment, whereby he alleges that he should not be imprisoned for others’ misinterpretations of his rap lyrics on his own social media account. Yet prosecutors are arguing that the First Amendment exception for true threats should apply.

The outcome of this case could potentially impact the way individuals use their social media accounts. At a minimum, an accused facing criminal charges should think twice about any posting any comments online that could be later used as evidence.

Source: The New York Times, “On the Next Docket: How the First Amendment Applies to Social Media,” Adam Liptak, June 30, 2014