Are threats to people made on social media websites protected under the First Amendment?
The U.S. Supreme Court has agreed to consider that issue, announcing Monday that it would review the case of Anthony D. Elonis v. United States.
Elonis already has served jail time for threats he made on his Facebook page to his wife, an FBI agent and former coworkers. It’s jail time his lawyers say their client shouldn’t have served, because the wrong legal standard was used to convict him.
For more than 40 years, “true threats” have been considered outside the protection of the First Amendment. The trick is determining what a true threat is. For example, the High Court struck down a Virginia law against cross-burnings in 2003, because all cross-burnings weren’t threatening.
To identify true threats, a pair of standards have evolved. One, the so-called subjective standard, seeks to determine if the person who made the threat intended to carry it out. The other, the “reasonable person” standard, says a threat is true if a reasonable person would believe it would be carried out.
Elonis was convicted using the reasonable person standard, but his lawyers maintain the subjective standard should have been used in their client’s case.
“Every case is different, but in general, it’s harder to prove subjective intent than it is to prove how a reasonable person would perceive the speaker’s intent,” Jeff Nobles, an attorney with Beirne Maynard Parsons, told TechNewsWorld. “That’s the heart of the issue before the court now.”
Elonis’ wife, with their two kids in tow, left him in 2010. He lost his job at an amusement park shortly thereafter and began making dark posts on his Facebook page. The posts often took the form of rap lyrics — some copied almost verbatim from comedy group Whitest Kids U’ Know — and Elonis claimed on his page that his ramblings were not a “true threat.”
His wife nevertheless obtained a “protections from abuse” order against him. This set off a fresh wave of threats, which prompted Elonis’ former employer to call the FBI. After FBI agents interviewed Elonis, he posted a threat against one of them, too.
In December 2010, Elonis was tried under a federal law inflicting fines and jail time on anyone using interstate or foreign commerce to communicate any threat to kidnap or injure a person. He was sentenced to 44 months in prison, plus three years supervised release.
The Supreme Court has agreed to review Elonis’ case and the federal law under which he was convicted because there are conflicting lower-court opinions about the application of the subjective and reasonable person standards in these kinds of cases.
The subjective standard should be applied in social networking cases, argued Clay Calvert, director of the Marion B. Brechner First Amendment Project, which — together with the Thomas Jefferson Center for the Protection of Free Expression and the Pennsylvania Center for the First Amendment — filed a friend of the court brief requesting the Supreme Court review.
“The nature of the medium, especially an online medium, does make a difference,” he told TechNewsWorld.
“Because it’s not face-to-face communication and the speaker is far removed from the audience in question, the intent of the speaker might be more easily lost in the communication,” Calvert said.
“Their intent may be lost on the Internet, which is why subjective intent is important to consider,” he noted.
“There’s a lot of satire and sarcasm on Facebook that make it difficult to distinguish between what is a sincere threat or a true threat,” added Beirne Maynard Parsons’ Nobles. “The distance from the speaker and the nature of the medium makes it more complicated than a face-to-face confrontation.”
However, there’s an argument that the subjective standard is inadequate to protect parties, particularly women, targeted by online threats.
“Social media has made it easier for women to be threatened,” Jaclyn Friedman, executive director of Women, Action & the Media, told TechNewsWorld.
“I can tell you firsthand, I don’t know the intent of the person who posts something about me in social media,” she said. “I only know what they’re saying to me. I have to take all those threats seriously because I’m not psychic.”