Supreme Court weighs in on social network free speech

If you threaten someone on Twitter or Facebook, should it be considered a crime or protected under free speech?
Written by Charlie Osborne, Contributing Writer
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.

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