Publisher's Notebook

Federal law prohibits making threats to injure someone else.

The statute, 18 U.S.C. § 875(c), has been on the books since the 1930s, and it has been used to prosecute everything from extortion to stalking to basic promises to commit bodily harm.

Government prosecutors in Tennessee made some legal history when they scored a conviction under this statute against a guy who threatened a judge in a YouTube video. The case marked the first time YouTube provided the means to commit the crime.

The defendant, Franklin Delano Jeffries II, was embroiled in a tangled visitation fight. He wrote a song, “Daughter’s Love.”

But this tune wasn’t one of those “Butterfly Kisses”-like paeans to his kid. It wasn’t even a tune in which he was off in his truck and stopped to call from a pay phone to say, “I’m on my way, darling.”

No, it included tender lines such as, “Take my child and I’ll take your life” and “you don’t deserve to be a judge and you don’t deserve to live.”

Jeffries posted the video on YouTube, then sent messages about it to a number of his Facebook friends. He took it down 25 hours later. Too late. His ex-sister-in-law saw it and tipped the judge. The authorities also viewed the video and federal prosecutors went after Jeffries, gaining a conviction under § 875(c).

The 6th U.S. Circuit Court of Appeals affirmed this week in a unanimous panel opinion written by Judge Jeffrey S. Sutton.

Sutton worked through the defense arguments, which included discussion of whether the threat had to be objectively real to a reasonable person or subjectively real in the mind of the victim. And the First Amendment came into play as well.

But the Jeffries case was somewhat unusual. Sutton filed the affirmance, but he filed a second opinion – an “opinion dubitante.”

Wait a minute, you say. You’ve got concurrences and dissents. What is a dubitante?

It’s actually a third category that doesn’t get used very often. It’s a way for the judge to say, “I have some doubts and I’m not entirely happy with this result, but I’m not going to say it’s wrong. But I have some doubts.”

If you’ve never heard of it, you are not alone. A Marquette law prof, Jason Czarnezki, wrote a law review article a few years ago that said as of 2006, there only had been 626 dubitante opinions in American jurisprudence ever. The U.S. Supreme Court has used it 12 times.

What sent Sutton off to the dubitante ball in the Jeffries case?

He wondered if the 6th Circuit had been reading the law right. The statute doesn’t contain a definition of “threat,” which one might assume automatically requires some subjective sense of discomfort from the victim. But the conviction was in line with precedent.

Jonathan Harwell, Jeffries’ lawyer, told an Associated Press reporter that the dubitante opinion may be an invitation to ask the 6th Circuit should look at the case en banc; he is reviewing his options.

As for Jeffries, he is back in jail, Harwell said. He served 18 months for the YouTube video, then had his probation revoked. Presumably he has his guitar with him, but not his computer.

Remember that the new rules are the old rules when you’re blogging, tweeting or posting on Facebook.

Watch what you say about pending cases and your clients.

Don’t solicit business and don’t forget the rules on recommendations.

If you’re a lawyer and looking to use social media as part of your marketing repertoire, those are just a few of the things to keep in mind.

A project of the American Bar Association, the Commission on Ethics 20/20, has spent several years studying revisions to the ABA model ethics rules, with an eye on how technology comes into play.

Longtime legal journalist Bob Ambrogi has put together a list of “10 Tips to Keep Social Networking in Line With ABA Ethics” for the website Legal Technology News.

He covers the items above and offers in a quick primer on the ethics of social media, in light of the coming new rules.

Best to keep in mind his last tip: Use common sense.

Twitter allows you to share your life, 140 characters at a time. If you haven’t joined the social media service yet, take heart that there are tweeters on there who are waay behind you.

BuzzFeed, which calls itself the purveyor of “the hottest, most social content on the web,” has compiled a wickedly funny list of “The Top 10 Most Unforgivable Twitter Spelling Mistakes.”

Needless to say, some tweeters need to fight their auto-correct function or at least to proofread before posting. Or if this is how they really spell, maybe you’re not missing much by avoiding Twitter.

There are folks who call on angles for divine help and those who rail against the bad manors of others or against hippocrates (posers, not the Greek guy). Some high school tweeters can’t wait to go to collage. There is at least one entry I won’t repeat in a family blog.

And items #2 and #1 are guaranteed to give you a laugh you’ll want to share with others all day long. This stuff just writes itself.

That headline may not be the catchiest of state nicknames, but it’s accurate.

The Maryland legislature has passed a bill that makes the Free State the first jurisdiction to prohibit employers from asking for the social media user names and passwords of prospective and current employees.

The Baltimore Sun reports that the bill protects Facebook and Twitter info, among others. The measure passed the Senate unanimously and by a wide margin in the House. It now goes to Gov. Marvin O’Malley.

Similar bills are pending in Illinois and California, the Sun reports.

Closer to home, the Virginia State Police made waves last month when it came to light it required trooper applicants to provide their social media user names and passwords as part of the application process. Officials called their practice a “virtual character check.”

The Virginia ACLU protested; for what it’s worth, the Maryland chapter of the ACLU was instrumental in pushing the just-passed measure in Maryland.

Just in time for Valentine’s Day, here’s an item that presents a novel twist for divorce lawyers.

There have been plenty of cases in which a parting couple decide who gets pets or unique property.

And social media has become one of the routine sources to mine evidence and information.

But what happens when the couple has maintained a joint account on Facebook or some other social media site? Who gets the friends? Who gets to keep the Farmville dollars they have collected?

Anita Ramasastry, a law professor in Washington state, looks at these issues in a piece entitled, “Divorce, Digital Identities, and Virtual Property.”

You might read this item, recall your own misspent undergraduate days and be glad you applied to law school in the pre-Facebook era.

A whole lot of law school admissions officials have been going online to review their applicants’ digital trail to determine whether to say thumbs-up or thumbs-down.

Kaplan Test Prep just conducted a survey of law schools and some 41 percent of admissions officers admitted that they had Googled the names of applicants.

Thirty-seven percent said they had been on Facebook, seeking information.

The survey was conducted by phone this past summer. A total of 200 ABA-accredited law schools were contacted, with responses recorded from 128 of them.

The bad news for a student with something sketchy circulating in the ether is that this stuff matters. Almost a third – 32 percent – of the admissions officers said that information learned online had hurt an applicant’s chances of admission.

What are the admissions people looking for when they Google or Facebook? Many bar licensing groups – including the Virginia Board of Bar Examiners – impose character and fitness tests as part of their vetting process. So, in two words, they are looking for good judgment.

Jeff Thomas, director of Kaplan’s pre-law programs, said in a release, “Clearly, an applicant’s digital trail can be an indicator of whether or not he or she possesses this quality.”

Forewarned is forearmed.

Random tweets from Twitter, collected during the past week:

Notes on domestic relations, from @qwertying:
I just read last year 4,153,237 ppl got married. I don’t want to start any trouble, but shouldn’t that be an even number?

Deep thoughts, provided by @rolldiggity:
It’s sad how Wile E. Coyote is remembered for his violence, and not for his brilliantly realistic paintings of tunnels.

Helpful hints, not from @heloise, but from @ablanchard519:
Dropped ipod in the sink last night, so i dried it off and thought it was toast. Put it in a bag of rice overnight and the thing works fine!

Technology updates, courtesy of @rfelty:
Leaf blower finally gave out. Picking up a new model. Think they’ve improved in 5 yrs. This one is also a WiFi hotspot.

And a fair-warning tweet to pull out on a no-good, very bad day, from @PubChick:
Today’s bad mood was brought to you by the letters F & U.

Facebook, the social media giant, has sprung a number of new changes on its millions of users this week, and the early reviews are not good.

Among the changes:

• The old News Feed now shows up on the right side of the screen in a constantly moving crawl as your friends provide new updates on their activities or comment on each other’s cute cat pictures.

• The center of the page provides a list of “Top Stories” which apparently provides updates from some of your friends, but not all. There is no explanation of why an item is a “top story.”

• In what seems to be a feature taken directly from new competitor Google+, you can set up “lists” based on, well, whatever you want. You can set up a school list, or a work list, or a list based on some common interest. It’s up to you, if you want to invest the time.

• You can decide which of your Facebook friends are your “close friends.” As if Facebook hasn’t already presented you the dilemma of whether to accept the “friend” request of someone who really is only an acquaintance….

If this seems like a lot of work to fix something that wasn’t really broken, you’re right.

I have yet to see anyone who really likes it (one friend claimed to like the changes, just to be an iconoclast). I saw more than a few friends last night who reposted a photo with a banner that said “Hate the New Facebook.” Mysteriously, those posts had disappeared by this morning.

One friend out in the Seattle area had reposted a Dr. Seuss-style poem: FB Poem #2: I do not like green eggs and ham, I do not like Facebook spam. I do not like the new Facebook change, I do not like my friends rearranged. I do not like them in a row, down below or coming up and appearing slow. I do not like them by family, friend, city or state. I do not like the page to hesitate. I do not like the Facebook change, I do not like my friends rearranged! I do not like this new Facebook crap. Kill it, smash it, make it scrap (author unknown).

Brad Panovich, a meteorologist in Charlotte, is a Facebook maven and he has posted a couple of videos on the new Facebook. In particular, he has a video with advice on how to jigger the list function to the list function to get your News Feed pretty much in its previous format. It’s worth a look.

And if you are really, really unhappy with the new Facebook changes, I’m sure Mark Zuckerberg will give you your money back.

Tourists visiting Colonial Williamsburg got an unexpected treat on Tuesday.

After a historical reenactment from revolutionary days, an apparent tourist at the back of the audience broke out in song. Then another tourist joined him. Then another.

Before you knew it, there was an entire choir singing a patriotic ditty.

Actually it was an entire choir…the Mormon Tabernacle Choir staged the performance, flash-mob style.

They are on an East Coast swing and including a stop in the Colonial Capitol.

The crowd was asked to join in and sing “Yankee Doodle,” unaware they were singing with the world-famour choir.

Colonial Williamsburg filmed it all and posted the performance on YouTube. The choir gets going at about 3:30 during the clip.

The Daily Press also has a report.

Trend Alert: Here’s one you may not have seen yet, but odds are, it will make its way into your life soon.

There is a movement, mostly spurred by social media such as Twitter, to start referring to the Metropolitan DC area as “the DMV” (as in District/Maryland/Virginia).

What’s wrong with “Nation’s Capital” or “Metro DC,” you ask? When you’re limited to 140 characters a post, those titles take up much-needed room.

The Washington Post first flagged the development with an article back in July. The Post writer’s take was generally positive, likening the need for a cool regional nickname along the lines of “H-town” for Houston, or “the 612″ for Minneapolis (taken from the area code) or “the ‘nati” for Cincinnati. OK, Cincy needs to work on this.

TBD, the TV station/news website covering the Metro DC area (I’m not succumbing yet), notes that “the DMV” has been pretty controversial. TBD has solicited comment from Twitter users with alternate hashtags, #dmv and #nodmv.

The “no” votes are winning. Reasons for the thumbs-down:

One guy tweeted, “@TBD #nodmv, mostly because I live in #NoVA and want nothing to do with Maryland. #EffMD”

Another woman said, “@TBD No DMV. Don’t associate my favorite city with the most god-awful place on earth: the Department of Motor Vehicles.”

That sounds pretty reasonable.