Supreme Court weighs in on social network free speech

Supreme Court weighs in on social network free speech

Summary: If you threaten someone on Twitter or Facebook, should it be considered a crime or protected under free speech?

cred zdnet
Credit: ZDNet

The US Supreme Court will soon decide how far the concept of free speech protects those who threaten or abuse on social media sites.

As reported by the Associated Press, the court has taken up the case of Anthony Elonis, who four years ago took to Facebook to rant about his estranged wife. The Pennsylvania man posted a public note about his wife, writing:

"There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

This message, unsurprisingly, rang alarm bells. One of Elonis' contacts, his former employer, alerted police about the note -- but the tale did not stop there. After the FBI paid Elonis a visit, a new message later appeared on Facebook:

"Little agent lady stood so close, took all the strength I had not to turn the woman ghost. Pull my knife, flick my wrist and slit her throat."

It wasn't long before Elonis was sentenced to nearly four years in federal prison due to the threats.

Elonis claimed that the posts were intended to be artistic and were nothing more than rap lyrics -- and there was no intention to cause any harm or commit violence. Instead, Facebook provided an outlet for him to release his frustration, caused by the situation with his wife. As such, Elonis has maintained that he is protected under the First Amendment, and holds the right to free speech.

At trial, the jury was instructed to find him guilty if his posts could objectively be viewed as 'threatening.' Elonis' defense argued that this was wrong and such messages should be viewed subjectively, given the casual nature of the Web.

This is one issue that social media cases bring to light. We often hear of cyberbullying, trolls and threats made across the Web, but legal systems have largely given such cases a wide berth. However, as social media is now mainstream, it cannot be ignored much longer.

On Monday, the court stated (.PDF) that it will consider whether conviction through threatening another "requires proof of the defendant's subjective intent to threaten." If intent rather than just words comes into the equation online, this is likely to have an impact upon our definition of free speech and criminal activity. Intent is often a murky area when you are relying on non face-to-face communication, and so the outcome of this case could have wide-ranging repercussions for how people conduct themselves online.

This kind of behaviour is unacceptable based on Facebook's Terms of Service, which states that "we remove content and may escalate to law enforcement when we perceive a genuine risk of physical harm, or a direct threat to public safety. You may not credibly threaten others, or organize acts of real-world violence." However, most often, such messages are simply deleted and forgotten.

Topic: Legal

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  • Free Speech is a wonderful thing ...

    ... but the 'free speaker' still has to face the consequences of their 'free speech'.

    And anyone who's spent time on the social networks knows that too many people just don't care who they hurt.

    No coincidence, of course, that women are all too often the target.
    • if you can bully a kid online into killing themselves.

      Then the threat is real regardless of the intent. Since lots of teens have killed themselves from cyber bullying it only matters what the perceived intent is, since the real intent cannot be asscertaibed the perceived intent is all the subject has to go on. (And it should be all the justice system cares about too.).
  • Advanced warning

    I am a lawyer and the basis of the decision to grant certiorari frankly concerns me. One of the very old Free Speech cases held that someone yelling "fire" in a movie could not claim that it was protected speech; this guy's rants seem to fall into the same classification (and yet may).

    However, other basic principles of law generally assess motivation as inferred from language based upon an objective standard – what would a reasonably prudent person perceive? Proving subjective intent is extraordinarily difficult and if this is required, would make many criminal cases impossible to prove. I once had faith that the Supreme Court would use common sense and good legal reasoning, but the last decade of "result oriented" decisions have made me far more skeptical.
    • I consider myself a reasonable person. And I view these are threats.

      Not even a doubt.
    • About "'fire' in a theater"...

      That line is from a decision upholding a man's conviction for publishing materail advocating resistance to the military draft, as you probably know.
  • Speaking of Rap singers...

    Why do they get to sing about killing cops and not go to jail?
    • Because

      Freedom of speech, that's why. Actually criticizing Government is the very reason the first amendment exists in the first place. America was born in rebellion to authority, it's part of our cultural make up.
  • Rights

    We trek a dangerous path every time Freedom of Speech is challenged or thrown out as an excuse.

    Our freedom is fragile and our mouths are big. Such freedoms need not protect those who do actually intend to cause harm or intentionally use idle threats to instill fear. But, our legal system has built upon the concept of precedence, making one ruling a near blanket for another, unrelated situation.

    This guy clearly didn't get the picture.
    - Let him walk on the first post, assuming he has no compound threats to or about the skank.
    - Let him fry for the second post. He was visited because of his big mouth and then thought it was a good idea to suggest a violent threat against those who visited him.

    Purely on the grounds that his threats were so violent and were in response to an existing warning over a previous threat that was already serious, but somewhat less violent, he can't be allowed to walk without consequence.

    The relationship between population and intelligence is linear: The more people, the more idiots.
    • Yeah...

      In most countries uttering death threats, credible death threats, is a crime punishable by imprisonment. I don't think a person has the right to harass someone and we have laws against harassment, I see death threats as harassment.
      • I see them as assault

        The fact that violence was threatened without a weapon being displayed is, I think, irrelevant. The important part is a threat of violence that a reasonable person would interpret as serious.

        By the same token, a phone-in bomb threat should also be considered assault.
        John L. Ries
  • Free Speech is not controlled by the liberal hall monitors.

    "It behooves every man who values liberty of conscience for himself, to resist invasions of it in the case of others: or their case may, by change of circumstances, become his own,...As It is more dangerous that even a guilty person should be punished without the forms of law than that he should escape. For I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it." - Thomas Jefferson

    It is time this pansyassed generation, and those who bore them were stopped from trying to infect the rest of the word with your desire to pussyfy the rest of us. I am tired of living in a world of "hall monitors"; leftists, progressives, socialist driven cowards who believe "free speech", and "Freedom of choice" are only valid principles when they are the ones doing the choosing, and they are the ones who happen to be talking.

    239 years ago,....the very people crying about "bullies" and "words hurt", are the same people who would have bent over to kiss Cromwell's boots, when King George sent him here to end our rebellion.

    It's getting old,....and tiresome.

    You know what stops "words that hurt", and "bullies"? They same thing that has stopped them all through history,.....a good stick kick in the ass, or a black eye, not whining like a damned 5 year old about how mistreated you are.

    Grow a set and move on.
    • My sentiments exactly

      If he wanted to kill her he could have. He wrote those comments after the FBI agent left his house and he was hoping he would never see her again. And the comment does have a poetic touch to it (it rhymes).

      Liberty is only for the leftists, post-modern, secular and politically correct. They talk of tolerance but all I see is hate.
      • A quote of my own

        "I can't remember where I heard this, but someone once said that defending a position by citing free speech is sort of the ultimate concession; you're saying that the most compelling thing you can say for your position is that it's not literally illegal to express."

        Randall Munro in the mouseover text to "xkcd" 1357
      • Liberty is for everyone

        We might disagree about the limits (and everything has limits), but at the minimum, it means that people are free to make their own decisions subject only to the rule of law; and that one may only be punished by an impartial court after being found guilty in a fair trial.

        But everyone is entitled to the same freedoms, no matter who they are or what they believe.
        John L. Ries
    • I won't bvother to respond in kind... your intellectually-limited use of invective and defamation, since that is the highest level of discourse you seem to be capable of, and one must make allowances for the less-fortunate.

      I will point out that "freedom of speech" allows you to say what you want - but in no way does it or should it shield the speaker from the consequences of his ill-considered use of that freedom.
      • oh darn - look

        I made a typo in my post title. I'm sure that someone will take it as an opportunity to discredit me.
    • Jefferson

      Why is it that people continue to quote Jefferson. For one thing he had a very limited role in the formation of the Constitution and Bill of Rights. For another if they ever read his complete works they would come away with a very different view of the man.

      When I see someone "quote Jefferson" All I see is someone who is incapable of forming his own opinion and relies on others to do so. Please don't take this personally, but I see way too much of it.

      As to the topic of free speech. Would you have had the same response if he had actually killed his wife? His intent was to terrify her IMO and should be held culpable for his actions. If he cannot exercise personal control of his actions and threatens people then he should be judged accordingly.
    • Well, I thought that there was one clear mark of civilization

      That being, one can insult another without resorting to threats of violence and the nature of one's end, and that being repeated "ad terrorem."

      In fact, you see more civilization expressed in courtesy and wit on the terraces of Upton Park to those visiting from Millwall when they do than by the socio/psycopaths you see online.
    • "Speak, hands, for me"

      The thing that makes bullies criminals or juvenile delinquents (depending on their ages), instead of the natural leaders some of their apologists portray them as is violence and the threat of violence. As far as I can see, tolerating them has no redeeming value whatever.

      Assault (legal or not) is a crime, even if it's done with words and should be punished accordingly. I've long thought that habitual schoolyard bullies, if caught, should be both expelled from regular school (they can go to continuation school with their fellow expellees or be home schooled) and prosecuted. There is no benefit I can see in letting them victimize their weaker or less aggressive peers (not even to themselves).
      John L. Ries
      • That said...

        ...harassment is not bullying. The two are often conflated, but they are separate offenses and should be treated differently (so-called cyberbullying, unless it could reasonably be construed as assault, is harassment, not bullying).
        John L. Ries