The U.S. Supreme Court on Monday heard arguments in Elonis v. United States, also known as “the Facebook threat case.”
At the center of the case are a number of threats posted in the form of rap lyrics to a Facebook page created by Anthony Elonis. The targets of the threats were his estranged wife and an FBI agent.
Elonis was convicted on four of five counts of making threatening statements in violation of federal law.
Elonis’ attorneys appealed that conviction, saying the wrong standard was used to prosecute him. Based on that standard, a threat can be considered true if a reasonable person would consider it so.
In order to convict their client, his attorneys argued, the prosecution should have to prove that Elonis intended to communicate a true threat with his Facebook statements.
Elonis’ conviction was upheld by an appeals court, and now it’s up to the Supreme Court to settle the matter.
Not the Wild West
Elonis v. United States has not only free speech implications, but also online speech implications.
“The implications of the case are huge,” Clay Calvert, a journalism professor at the University of Florida, told TechNewsWorld.
“Many people don’t realize that when they post messages on Facebook or Twitter that those messages can be found to constitute true threats of violence and therefore not be protected by the First Amendment,” he said.
“People think that social media is like the Wild West and that anything goes,” Calvert added. “That’s not the case.”
A subjective standard that takes intent into account is needed more than ever in the Internet age, argued David Greene, a senior staff attorney with the Electronic Frontier Foundation.
“By the time a message reaches a recipient, it can be very remote in time and context from when it was originally made. The issue of subjective intent is more important than it was before because of the way Internet communication works,” he told TechNewsWorld.
“Today, a significant amount of speech on political, social, and other issues occurs online, and is often abbreviated, idiosyncratic, decontextualized, and ambiguous,” notes a brief the American Civil Liberties Union submitted to the court.
“As such, it is susceptible to multiple interpretations, making a subjective intent requirement particularly necessary to ensure that protected online speech is neither punished nor chilled,” it contends.
Communication on the Net easily can lose its context, said Emma Llans, director of the Center for Democracy & Technology’s Free Expression Project.
“It is so easy online for statements to be taken from one context and put in another,” she told TechNewsWorld. “The person who makes a statement for one audience may find that statement placed in front of another audience that he had no intention to communicate to.”
Concentrating on the intent of a speaker is the wrong way to formulate a standard, argued Michael Lieberman, director of the Civil Rights Policy Planning Center of the Anti-Defamation League.
“The impact on a victim of threat speech should be really important in determining if something is illegal conduct or protected speech,” he told TechNewsWorld.
“You can’t say anything you want on the Internet and get away with it just because it’s the Internet,” Lieberman added.
If the Court upholds Elonis’ conviction, it will be an important victory in the effort to curb domestic violence.
“The reasonable person standard is vital because very few abusers or stalkers admit their goal is to cause their victim fear,” said Cindy Southworth, vice president for development and innovation with the National Network to End Domestic Violence.
“In this case, it didn’t matter where he posted his threats,” she told TechNewsWorld. “The goal was to threaten his victim, and he succeeded.”
If the court flips the lower court decision, it could be a serious setback, noted Southworth. “Most stalking statutes use the reasonable person standard, so if the decision is overturned, it could have a devastating impact on police and prosecutors’ willingness to take new cases involving the reasonable person standard.”