Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—Ind. App.: Fired worker’s criminal convictions for posting alleged threats on Facebook reversed, (May 14, 2025)

By Todd Harrison, J.D.

There was insufficient evidence that he had some understanding of his statements’ threatening character and had consciously disregarded a substantial risk the conduct would be viewed as threatening.

A former salesperson for an auto parts supplier had his misdemeanor and felony intimidation convictions reversed by an Indiana Court of Appeals. After being terminated from his job, the employee made three separate Facebook posts, marked as “private” and thus only viewable by those on his friends list, intimating acts of violence toward his former supervisor. The court found that the employee did not have some understanding of his first two posts’ threatening character, nor did he consciously disregard a substantial risk that the conduct would be viewed as threatening. This was not the case with the third post but, lacking an unanimity instruction, it was impossible to say which post(s) led the jury to a guilty verdict (Haycraft v. State of Indiana, No. 23A-CR-2088 (Ind. App. May 13, 2025)).

Prior to his termination, the employee worked in a “high-performance” sales position, selling race car parts and engine supplies to car shops.

New supervisor, termination. In late 2019, the employee began reporting to a new supervisor. The two did not have a good working relationship. On March 23, 2020, the supervisor terminated the employee, and allegedly spoke to him in a provoking and profanity-laden manner.

March 23 post. That same day, the employee deleted all but three of his coworkers from his list of Facebook friends. He had socialized with those individuals outside of work and believed they knew him well enough to know when he was venting. Later that day, the employee posted about having a new gun and hollow point bullets, and how his life had been destroyed. At least one of the coworkers on his friends list showed the post to the supervisor who reported the post to the employer’s HR department.

April 30 post. On April 30, 2020, the employee posted another private statement viewable only to his Facebook friends, and provided comments on other comments people had left, describing how his supervisor had bullied him and how he just wanted to get back at people sometimes. Again, at least one of the coworkers on his friends list showed the post and comments to the supervisor who again reported the incident to the employer’s HR department. At this point, someone in HR contacted the police.

Warning. An Indiana State Police Sergeant Detective visited the employee’s house and told him to stop making such comments on Facebook because the employer considered them to be threatening in nature. Following this conversation, the employee changed all of his Facebook settings to private and unfriended the three coworkers.

June 12 post. On June 12, 2020, the employee made another private post on Facebook after a meeting with the EEOC did not go well. He stated that if he did not have children, he would “just go shoot that punk ass bitch right between the eyes,” and intimated other violent acts he would like to take against his former supervisor.

Shortly thereafter, the employee’s girlfriend asked him to delete the post, which he did. However, he was not quick enough, as someone took screenshots of the post and comments and forwarded them to the supervisor. The employer’s HR department again contacted the police. When the police visited the employee, he was asked if he remembered being told to stop with the threatening posts. The employee responded that he was just venting.

Criminal charges. Four days later, on June 17, the state charged the employee with misdemeanor intimidation, alleging that the June 12 post had communicated a threat to his former supervisor, causing him to be placed in fear of retaliation. Fifteen months later, the state amended the charges to include a felony intimidation charge. The case proceeded to trial.

Jury instructions. At no time during the trial did the state set forth which Facebook post supported the misdemeanor charge and which supported the felony charge. The jury instructions included the charging information alleging the employee had committed the offenses on or about March 23, 2020, April 30, 2020, and/or June 12, 2020. The jurors were not specifically instructed that they had to reach a unanimous decision as to which Facebook post and comments, if any, constituted misdemeanor intimidation and which Facebook post and comments, if any, constituted felony intimidation. The jury voted to convict and this appeal followed.

Counterman. In Counterman v. Colorado, 600 U.S. 66 (2023), the U.S. Supreme Court held that “the State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character.” It further lowered to a reckless standard the mens rea for determining whether a statement is a true threat unprotected by the First Amendment. Specifically, the Supreme Court explained that “[i]n the threats context, it means that a speaker is aware that others could regard his statements as threatening violence and delivers them anyway.”

Protected speech. Applying the Counterman standard to the March 23 post, the court here noted that although the employee had his supervisor’s cell phone number, he chose not to contact his supervisor directly. Rather, he had made a private post viewable to friends only. Further, prior to making the post, he deleted all but three of his coworkers from his friends list, retaining them only because they socialized outside of work. He did not believe they would show the post to his former supervisor.

Based on these facts and circumstances, the court agreed with the employee that the state had failed to prove that he had some understanding of his statements’ threatening character and that he had consciously disregarded a substantial risk that his conduct would be viewed as threatening. Accordingly, the court found this post was not a true threat and was protected by the First Amendment.

With regard to the April 30 post, the employee again did not directly contact his former supervisor and had made the post viewable only to those on his friends list. As such, the court concluded that this post and the comments made on the post did not constitute a true threat and were protected by the First Amendment.

Not protected speech. As to the June 12, the employee had some understanding of the threatening nature of the speech and had consciously disregarded a substantial risk that his conduct would be viewed as threatening, given that he had previously been warned by law enforcement to stop making similar posts. As such, this post and the comments made by the employee on the post constituted a true threat and were not protected speech.

Ambiguous instructions. Although the June 12 post constituted a true threat, the court explained that its analysis did not end there because the trial court had failed to provide a unanimity instruction to the jury. Specifically, the instructions provided that the state had to prove that the employee committed the charged offenses on or about March 23, 2020, April 30, 2020, and/or June 12, 2020.

As written, the instructions provided that the state could prove that the employee had committed intimidation March 23, 2020, April 30, 2020, or June 12, 2020, effectively referencing all three alleged intimidation incidents within two charges. “Under these circumstances, the trial court should have provided the jury with a unanimity instruction,” said the court.

Because the trial court did not provide the required unanimity instruction, the court here was unable to determine whether the jury based its convictions on the two posts that were protected speech or on the post that was a true threat. Thus, it reversed both convictions and remanded the case to the trial court with instructions to vacate the convictions.

The case is No. 23A-CR-2088.

Judge: Pyle, R., III.

Attorneys: Kyle C. Beach (Blanton & Pierce) for Brent M. Haycraft. Theodore E. Rokita, Office of the Indiana Attorney General, for State of Indiana.

Cases: IndividualRights Discharge IndianaNews