The justices will hear arguments Monday in the case of a man who was sentenced to nearly four years in prison for posting graphically violent rap lyrics on Facebook about killing his estranged wife, shooting up a kindergarten class and attacking an FBI agent.
Social Media And The Supreme Court
The issue of the First Amendment’s free speech clause always confuses people. Essentially it says that people have the right to speak freely without government interference. It does NOT say that there will be no consequence for your actions. You can say whatever you want, but you can be shunned for saying something foolish, and/or pressured to resign, even, but the act of saying it is not against the law.
Now, that said, context is the key. Posting death threats to your ex-spouse probably goes over the line, especially if the threatening spouse has a history of violence. Teenage angst posting that they wished the Calc teacher—who just failed you—was dead is poor judgement. How you discern the difference will be the real test, and like all of our other post 9-11 Terror Theater, how do you know when the threat is credible, and can you prevent the next Isla Vista-style mass shooting if the warnings are present?
We’ve seen attempts all over the world with governments trying to censor social media, especially during times of unrest. It was said that Twitter was one of the great organizing tools during the Arab Spring; it was used very effectively during the Occupy protests to get people to certain locations; when we write the history of the Ferguson protest, will social media be mentioned? Probably.
Will bloggers, tweets, and Facebook, and the free press be curtailed by the ruling? Probably not (unless your blog regularly calls for someone’s head to be on a pike), but anytime the question of curtailing expression comes up to the SCOTUS, we should all pay attention.
Copyright 2014 Liberaland
By: Tengrain
Fully caffeinated with twice the sugar, unabashedly liberal. Award-winning Americans United blogger, blogs at Mock Paper Scissors, and sometimes at Crooks and Liars.
You can follow @Tengrain on Twitter, or you might see him enjoying coffee somewhere in Seattle at any given moment of the day.
2 responses to Social Media And The Supreme Court
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Crissie Brown December 1st, 2014 at 15:27
Anthony Elonis wrote vivid, detailed Facebook posts about killing his wife, including how he would do it, where he would bury her body, and that he would make it look like she was the victim a stranger rape-murder. He also wrote a vivid, detailed Facebook post about killing a female FBI agent who came to investigate his online comments. And he wrote vivid, detailed Facebook posts about abusing a female coworker, for which he was fired.
Had he said the same words in a telephone call or written them in a letter and sent it by mail, no one would question that his words were a “true threat” of the sort that has never been protected by the First Amendment.
His wife, the female FBI agent, and the coworker all said they felt threatened by Elonis’ threats — the FBI agent said she feared for herself and her family — and a jury agreed that a reasonable person would perceive his Facebook posts as “true threats.”
Elonis claims it doesn’t matter whether his wife, the FBI agent, and a female coworker reasonably felt threatened — as the jury found — but whether the prosecutor could prove, beyond a reasonable doubt, that Elonis subjectively intended to threaten them. He says he wrote the posts as ‘therapy’ or, alternatively, that he’s an aspiring rapper in the mode of Eminem.
This case isn’t about whether the First Amendment protects comments made on social media. It does. It’s about whether Elonis’ Facebook posts were “true threats” … and the First Amendment does not protect and never has protected “true threats.”
Crissie Brown December 1st, 2014 at 16:27
Anthony Elonis wrote vivid, detailed Facebook posts about killing his wife, including how he would do it, where he would bury her body, and that he would make it look like she was the victim a stranger rape-murder. He also wrote a vivid, detailed Facebook post about killing a female FBI agent who came to investigate his online comments. And he wrote vivid, detailed Facebook posts about abusing a female coworker, for which he was fired.
Had he said the same words in a telephone call or written them in a letter and sent it by mail, no one would question that his words were a “true threat” of the sort that has never been protected by the First Amendment.
His wife, the female FBI agent, and the coworker all said they felt threatened by Elonis’ threats — the FBI agent said she feared for herself and her family — and a jury agreed that a reasonable person would perceive his Facebook posts as “true threats.”
Elonis claims it doesn’t matter whether his wife, the FBI agent, and a female coworker reasonably felt threatened — as the jury found — but whether the prosecutor could prove, beyond a reasonable doubt, that Elonis subjectively intended to threaten them. He says he wrote the posts as ‘therapy’ or, alternatively, that he’s an aspiring rapper in the mode of Eminem.
This case isn’t about whether the First Amendment protects comments made on social media. It does. It’s about whether Elonis’ Facebook posts were “true threats” … and the First Amendment does not protect and never has protected “true threats.”