I subscribe to LinkedIn’s White Collar Criminal Defense Attorney Group. Someone posted on it a blog page from Expert Bail Bonds a nationwide network of bail agents listing groups of people who should not be on your Facebook friends list. The author points out that a juror was jailed for three days after sending a friendship request to a defendant in an automobile negligence case.

While the author is right that certain groups of people, such as (a)people you do not know, (b) the nosy police officer ¹, (c) the DA if you have a pending criminal matter, (d) your your bail bonds agent, and (e) a juror in your trial should not be friended the author is wrong in many respects. The author also lists your grandmother and your wife among others.

The issue is not who you friend, but what you say. In the Twenty-first century you cannot assume that anything you say on line, or most any other place will be confidential. You must assume that your grandmother as well as the nosy police officer ² will find out what you say. A friend of mine was diagnosed with cancer. One of his daughters posted it on facebook before her brothers and sisters knew about it–not cool.

Statements such “I got loaded last night and almost had an accident driving home” or “That was really good stuff at the party” should not be placed on Facebook. Likewise coded messages such as I have “two cars” (which every law enforcement officer knows that it means “two kilos of cocaine”) to sell should not be posted on facebook. These statements cannot only get you arrested but can be admitted at trial as a “party admission” exception to the hearsay rule.

A seventeen year old Illinois high school student was kicked out of school and charged with disorderly conduct for placing a sex list on Facebook with “the names of approximately 50 female Oak Park River Forest High School students,” that “detailed their sexual behaviors, sexual characteristics and physical appearance. The list contained both explicit and derogatory language.” On the face of it this might sound like a violation of Illinois’ disorderly conduct statute which reads in part:

(a) A person commits disorderly conduct when he knowingly:
(1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace ¹

But laws are subject to the United States Constitution and the First Amendment forbids, with only a few exceptions, any law which makes “speech” illegal. And there is no question that anything put on Facebook is “speech.” Constitutional violations are of two types. Sometimes a statutes is unconstitutional on its own and sometimes it is the enforcement of a statute in a particular incident that is unconstitutional. In this case the disorderly conduct statute is not necessarily unconstitutional but its enforcement against the student for using his right to free speech appears to be unconstitutional. As Illinois criminal defense attorney, Chris M. Shepherd states on his blog, “if your alleged disorderly conduct is composed merely of speech, your First Amendment freedom of speech rights will be enough, in most cases, to trump the disorderly conduct accusation.”

Hadley Jons was kicked off a Macomb County, Michigan jury. During the prosecution case and before hearing all of the evidence she wrote about her jury experience on her Facebook page. She not only wrote about her jury experience but she said that she could not wait to find the defendant guilty. She is now facing contempt of court proceedings.

I cannot imagine how many court orders she has violated. Every judge I know instructs the jury not to discuss the case outside of the jury room until after the verdict is in. They are also instructed not to discuss the trial with anyone but their fellow jurors and then only when they are in the jury room. Perhaps most importantly they are instructed not to make up their minds until all of the evidence is in.

Furthermore it raises the question of whether she discussed her feelings with the other jurors prior to the completion of the testimony. If so she may have tainted their ability to be impartial. Did she make other jurors her Facebood friends. And if so did they see her posting?