In State v. Craig, the New Hampshire Supreme Court upheld Brian Craig’s convictions for criminal threatening, witness tampering, and stalking. Craig’s convictions arose from the Facebook comments that he made about a bartender who worked at a restaurant he frequented in 2012. Apparently, Craig thought that he was in a relationship with this bartender despite the fact that the two had never been on a date or gone beyond polite social conversation.
In April of 2012, Craig sent the bartender a letter at her place of work in which he referenced his Facebook page and the belief that he thought the bartender was trying to hurt him. Alarmed by the letter, the bartender went to the police. Shortly thereafter, the bartender received a second letter. The bartender again went to the police who served Craig with a warning letter that told him that “future stalking behavior” would result in prosecution. The next day a third letter arrived which led the victim to seek a temporary restraining order from the court.
Several days after obtaining the permanent restraining order from the court, the bartender decided to read Craig’s Facebook page. She did so because Craig’s initial letter to her referenced his Facebook page and her mother told her about “the extent and the severity” of Craig’s posts.The posts about the bartender were contained in the defendant’s Facebook “Notes,” which could be read by opening the “Notes” section on Craig’s Facebook profile page. After reading the posts, the victim was again alarmed and contacted the police who confronted Craig about the posts many of which were made after the defendant had notice of the initial temporary restraining order.
Craig was subsequently indicted for witness tampering, stalking, and criminal threatening. The defendant was convicted and appealed the witness tampering and stalking convictions. The NH Supreme Court ultimately affirmed the defendant’s conviction on all three counts. This post will briefly highlight the stalking charge since that count most directly relates to social media.
According to the New Hampshire Supreme Court, to convict for stalking the state had to prove that Craig, by posting on his own public Facebook page after he had received a restraining order, engaged in a single act of conduct that constitutes: (1) an “act of communication”; and (2) “contact” pursuant to RSA 173-B:1, IV that violates the April 24th restraining order.
Here the court found that any action to communicate with another either directly or indirectly constitutes contact. According to the court, [b]y posting messages addressing the victim on his public Facebook page, and directing the victim’s attention to his page, the defendant both created a message and took steps to convey it to the victim.
It did not matter to the court that the victim actually went to Craig’s Facebook page to find the information. According to the court, [w]e discern no meaningful difference between the defendant posting messages on Facebook with both the purpose and effect communicating a message to her, and the defendant positioning himself on a street corner with the knowledge and expectation that the victim would pass by, and then shouting to her.
For additional support for its position, the court looked to Commonwealth v. Butler. In Butler, the defendant sent anonymous flowers to his ex-girlfriend and then was prosecuted for violating a restraining order. In upholding the defendant’s conviction, the court in Butler determined that “[the defendant’s] profession of anonymity merely invited inquiry.” Upon receipt of the flowers, the ex-girlfriend contacted the florist and discovered that her ex-boyfriend had sent them.
State v. Craig illustrates the challenges that some courts face when applying current laws and cases to events that occur online. For example, I didn’t find the Butler opinion all that persuasive. In Butler, the defendant made contact and violated the restraining order as soon as the flowers were received by his ex-girlfriend. No contact means no contact regardless of whether one leaves a name or identifying information. With a no contact order in place the defendant can’t call the victim from an unregistered phone and then hang up before his voice is recognized. These scenarios, however, are different from what occurred in Craig where the victim on her own sought out the information.
Also, I disagree with the court’s comparison of posting messages on Facebook with shouting on a street corner. If the defendant knows the victim has to pass a certain street corner everyday to go to work, the defendant cannot stand on the street corner in the hope of making contact. However, the same cannot be said about Facebook. What purpose would the victim have for going to the defendant’s Facebook page? The defendant’s use of Facebook, unlike standing on a street corner, does not interfere with the victim’s daily activities.