Just as this Supreme Court term nears it end, a lot of digital ink has been spilled over whether or not threats made on Facebook count as real threats.
On Monday, the high court agreed to hear the appeal of a man was sentenced to 44 months in jail for threatening violence against his ex-wife, Pennsylvania police officers, a kindergarten and a FBI officer on his public Facebook page. Anthony Elonis claims that his profanity-laced social media rants are not “true threats” so his imprisonment violates his freedom of speech.
This will be the first time that the justice consider online speech crimes. However, online or offline, what “true threats” really are is the sticking point, writes Dahlia Litwick for Slate.
The last time the high court scrutinized the “true threat” doctrine was in 2003, when it found that a Virginia law banning cross burning was unconstitutional because a “true threat” requires the speaker to communicate an intent to commit violence. … In that case, the court defined true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Elonis read the Virginia case to say that the definition of true threats means that the speaker must truly intend to threaten the victim.
In the lower court opinion, Elonis’ ex-wife certainly believed that he truly intended to threaten her when he wrote on multiple occasions of the “thousand ways to kill you” and how he wanted to fire mortars at her house. In his Supreme Court petition, Elonis disagrees because he never tagged his ex-wife in any of this threats because they were only rap lyrics.
Intent has been at the center of similar cases even though they have never gone before the Supreme Court. Justin Carter, a Texas man, is facing felony charges for saying that he would shoot up a kindergarten during a Facebook argument. The then 18-year-old said he was being sarcastic, but according to internet law attorney Travis Crabtree in eMedia Law Advisor, state law saw it as a legitimate terrorist threat. Granted, the accused did follow up his statements with “jk” and “lol,” are they enough to absolve him?
Can anyone prove, beyond a reasonable doubt, Justin intended to scare anyone or get law enforcement involved[?]
There are real threats made on social media and elsewhere. People that make bomb threats or take other actions meant to scare targeted people or waste law enforcement’s time should be prosecuted. People who have bad taste shouldn’t.
This case could set a precedent on how the law considers potentially threatening social media messages. The court will be viewing Elonis’ appeal in the context of Virginia v. Black, but unlike cross burning (and other in-person communication), context doesn’t convey very well on social media. Social media isn’t a vacuum either, so while the justices will be able to fall back on the Virginia case, will they also consider that Elonis has a history of threatening and sexually harassing female coworkers before he was fired?
Because his Facebook page was open to the public, Elonis’ comments could be taken any number of ways depending on how much you personally know about him and his relationships to those he threatened. In an op/ed for Vice News, Natasha Lennard writes that the legal system isn’t the best arbiter of Elonis’ statements, and a ruling against him is a slippery slope for social media.
Elonis’s case highlights a particular difficulty within current legal standards when applied to a social media context. What counts as a “reasonable” reading of online threatening comments is destabilized in a forum as public as Facebook. One man’s violent intent is another’s artistic expression of rage. Neither of which is to suggest that Elonis’s wife was not genuinely threatened by the comments, nor that such language should be condoned, in public or in private.
Legislating speech, especially in the age of social media, is a minefield.
A minefield is an understatement. Will a decision set a precedent for all online speech, not just on social media? What if Elonis’ page was private? While oral arguments are months away, the Supreme Court agreeing to take on this case opens up a landslide of questions.