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Where’s The Line Between Protected Online Speech And Criminal Threats?

Cyberstalking

On Monday, the Supreme Court agreed to hear a case that raises the increasingly important question of when online speech that may constitute a violent threat loses the protection of the First Amendment and becomes something that can be punished criminally:

The Supreme Court agreed Monday to consider whether people who post violent or threatening language on Facebook and other Internet forums must show intent to follow through on their threats in order to be prosecuted.

Anthony D. Elonis of Pennsylvania was sentenced to nearly four years in prison for the ominous photos and violent rants he made against former co-workers, law enforcement officials and his estranged wife.

Elonis said his postings, which included the lyrics of songs by the rapper Eminem, were free speech and not specific threats to harm anyone. The justices will consider the case next fall.

(…)

The Facebook case calls on the court to deal with a new frontier in how to deal with threats posted on social media sites. Lower courts are divided over what must be shown to charge those such as Elonis, and whether there must be evidence that he planned to act on his threats before prosecution.

Elonis was 27, estranged from his wife and just fired from his job at an amusement park when he posted violent images and threatening language on his Facebook page. One was a photo of him at the park in a Halloween costume and holding a toy knife to a co-worker’s throat. “I wish,” he wrote.

He also mimicked a comedy troupe’s routine about what constituted a threat.

“Did you know that it’s illegal for me to say I want to kill my wife?” Elonis wrote. “Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife.”

Elonis’s petition to the court said: “Although the language was — as with popular rap songs addressing the same themes — sometimes violent, petitioner posted explicit disclaimers in his profile explaining that his posts were ‘fictitious lyrics,’ and he was ‘only exercising [his] constitutional right to freedom of speech.’ “

As Mark Berman explains, in many ways this case will be the Court’s first foray into the world of social media, and the questions about the relationship between online personas and the real world:

[This case]  speaks to How We Communicate Now. Many people construct identities online, personas that they try to mold in some preferred image, ultimately creating a self that exists as an outlet, a tool, a hobby, a megaphone or whatever else they want. But people throw this self into a vortex of trolls and bots and F!RST!!1! and harassment and song lyrics and hedgehog GIFs, knowing full well that intention and tone often vanish as this self passes from our reality and into someone else’s. This isn’t new, but it is becoming more pervasive as our digital and physical selves overlap more and more.

This case will allow the Supreme Court to determine whether  “the nature of the medium” affects how a threat is analyzed, according to a brief submitted by three groups dedicated to issues of free speech and free expression (the Thomas Jefferson Center for the Protection of Free Expression, the Marion B. Brechner First Amendment Project and the Pennsylvania Center for the First Amendment).

“If context really is a key variable in determining the point at which speech loses First Amendment protection … then lower courts urgently need this Court’s guidance on how the context of online social media affects the true threats analysis,” the groups wrote in the brief.

The new(ish) landscape online offers a radically different context through which to view threats. No longer are known, identifiable figures expressing something publicly; now, people “exercise near-complete control over their persona,” regularly adopting usernames that cloud their identities, as the groups argued in their brief.

Again, the notion of using pseudonyms online is not new, but it’s a massively different playing field because the sheer level of participation has skyrocketed. Between 2000 and 2014, the percentage of American adults who use the Internet nearly doubled (rising to 87 percent from 46 percent) (so, yes, 13 percent of American adults say they don’t use the Internet). In 2000, concerns about anonymity and speech online were perfectly valid for the half of Americans who used the Internet; in 2014, concerns about online behavior and interactions are deeply important considering how much information we put online and the fact that we carry the Internet around in our pockets and purses.

(…)

Attorneys for Elonis noted in a legal filing that because online communication is “inherently impersonal,” such communication is “inherently susceptible to misinterpretation.” The brief filed by the U.S., rather, argues that a lower court was correct in telling a jury to determine if Elonis’s posts were a real threat under the “reasonable person” standard (which posits that if Person A makes a threatening statement about Person B, a reasonable person would assume that Person B would interpret the comment as a serious threat). The case revolves around online threats and whether a person has to show intent to follow through on these threats, but the larger issue is one that could play a role in how we treat online communications going forward.

The question of when a verbal or written communication that appears to be threatening crosses the line from protected speech to criminal act is one that predates the Internet Era, of course, but it has become a far more prevalent issue now that communication is far easier and anonymity of a sort far easier to bring about. Today, we live in an era where activities like stalking can be done from the safety of a computer keyboard, and where threats can be anonymously posted with little fear that authorities will actually do anything about it. While most of this online ranting amounts to much ado about nothing, there have been far too many cases of people who made threats online only to follow up on them in the real world. It was in response to those events that statutes such as the one at issue in this case were passed into law.

The question that the Court will be dealing with next term is an interesting one, though. Essentially, it will be deciding if there needs to be evidence of subjective intent to cause harm in order to charge someone with a crime. The argument that Elonis’s attorneys make, that it’s difficult to tell just from the content of communications themselves what the intent of the writer actually is, is one that has merit and we do need to be careful about criminalizing someone for posting what amounts to fantasy or wild speculation. At the same time, though, the correlations that we see between online threats and actual physical harm are far too prevalent to ignore.

I have to admit that this is an issue that I don’t have an immediate opinion on. Ordinarily, I’m a strong defender of the First Amendment and opposed to efforts to criminalize something that amounts to little more than words. On the other hand, cyber-stalking is a serious enough problem that there clearly needs to be some means of addressing it before it reaches the point where it ends in tragedy. It will be interesting to see how the arguments in the case develop, but if you’re interested in the issue generally, the Petition For A Writ Of Certiorari and other pleadings are available at SCOTUSBlog, and  are a good starting point. In any case, this case will likely be scheduled for argument earlier in the Court’s October 2014 term, meaning we could have a decision as early as January 2015.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. beth says:

    This is one of the things he posted about his estranged wife:I

    ‘m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die…”

    If someone posted that about me, I’d take it pretty seriously and consider it a threat, most especially if it came from an estranged husband. There were some other threats reported about too such as whether the restraining order she got if folded up would stop a bullet. This is just the kind of behavior that precedes way too many killings of women by men.

    If he said those things over the phone or in person, would that legally be considered a threat that the police could act on? If so, it should be the same if posted online.

    While I agree this raises interesting issues, I think the threats in this specific case are so egregious that they lose First Amendment protections. The safety of this woman must be paramount.

    Like or Dislike: Thumb up 13 Thumb down 2

  2. MM2 says:

    So the concept of whether quoting rap lyrics on the internet is threatening behavior is going to be decided by a group of (mostly) elderly people who have likely never listened to hip hop and never used the Internet outside of forwarding mail in comic sans. What could go wrong?

    Like or Dislike: Thumb up 5 Thumb down 0

  3. legion says:

    The brief filed by the U.S., rather, argues that a lower court was correct in telling a jury to determine if Elonis’s posts were a real threat under the “reasonable person” standard

    I think this is the real key aspect of this case… if Elonis had made his statements in some sort of limited forum, where only his ex or people close to him saw it, he _might_ be able to argue that they should have known he wasn’t serious about the threats & just blowing off steam. I don’t think I’d find it convincing if I was a juror, but he’d at least be able to make the argument. But by posting these things publicly, on Facebook, it seems pretty inarguably clear that he opened himself up to the lower “reasonable person” standard, and puts him in a much worse position.

    Like or Dislike: Thumb up 1 Thumb down 0

  4. legion says:

    @MM2: Maybe he should have quoted “Mack the Knife” or “Hey Joe” instead…

    Like or Dislike: Thumb up 1 Thumb down 0

  5. Tony W says:

    @MM2: That’s what law clerks are for :)

    Like or Dislike: Thumb up 0 Thumb down 0

  6. michael reynolds says:

    @beth:

    Apparently someone who likes to threaten women down-voted you.

    Like or Dislike: Thumb up 6 Thumb down 3

  7. Cletus says:

    @michael reynolds:

    No, it’s a First Amendment issue, not a women’s issue. Where do you draw the line on this? Eminem raps about raping his mother and killing people. Should he be censored or even arrested?
    In NY, A state law prohibiting phone threats, cyberstalking and other frightening behavior was struck down last month as being unconstitutional.

    Like or Dislike: Thumb up 3 Thumb down 1

  8. beth says:

    How many times have police gone to the house of a dead woman who was told “he doesn’t really mean it”? It doesn’t matter if it’s hip hop or Shakespeare you use to threaten with – it’s still a threat. If it’s bad enough to get a restraining order and it continues, the law must step in. You having 1st Amendment rights doesn’t mean I have to live my life in terror.

    Like or Dislike: Thumb up 11 Thumb down 0

  9. Grewgills says:

    @beth:
    The examples given in the post seemed like protected speech and to indirect to deserve prosecution. The one you posted seems a much more clear and actionable threat. I’m wondering why they led with the much more ambiguous quotes.

    Like or Dislike: Thumb up 1 Thumb down 0

  10. Grewgills says:

    @legion:

    if Elonis had made his statements in some sort of limited forum, where only his ex or people close to him saw it, he _might_ be able to argue that they should have known he wasn’t serious about the threats & just blowing off steam.

    I was thinking the opposite. If it was in a limited forum that included his wife I would be more inclined to think of it as an intentional threat. That it was general posts on his FB page and here I assume his wife is/was no longer friended to him on FB makes it more likely to be just him blowing off steam. That would be particularly true if we were just looking at the rap lyrics and the examples cited in the above article. The quote beth highlighted seems to step over that boundary regardless of forum unless I am missing something big.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. DrDaveT says:

    I’m a strong defender of the First Amendment and opposed to efforts to criminalize something that amounts to little more than words.

    This is pretty disingenuous, Doug. The much-cited decision to yell “Fire!” in a crowded theater is just a word, and not even threatening. There are many things I could say to you — depending on time, place, and manner — that would constitute criminal assault, despite being “little more than words”.

    At some point, the fact that the content of the communication is a threat against an individual must dominate the fact that the medium of the communication is “little more than words”. This is not the speech that George Mason hoped to protect from government reprisal.

    Like or Dislike: Thumb up 1 Thumb down 0

  12. @DrDaveT:

    The much-cited decision to yell “Fire!” in a crowded theater is just a word, and not even threatening.

    This analogy was first introduced in First Amendment jurisprudence as a justification for imprisoning opponents of the draft during World War I. The Supreme Court ruled that imprisoning opponents for speaking out against the draft and encouraging people to participate in civil disobedience against the draft was consistent with the First Amendment.

    It is a fatuous analogy that even Oliver Wendell Holmes Jr., who was the author of this particular construct, rejected in later decisions.

    As for the case at hand, it is difficult to see how the state prosecutes the man in this case but doesn’t prosecute artists like Eminem for songs like “Kim” (http://rapgenius.com/Eminem-kim-lyrics).

    If what this man posted constitues a true threat, it’s hard to see how they Supreme Court is going to thread the needle in order to prevent a lot of other art from being true threats.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. bill says:

    @michael reynolds: i know, i can’t stand my ex wife but would never throw that kinda crap her way- although i may think it , i’d never trash the mother of my children to try to make myself look better let alone physically harm her. i must be old or something?!
    @Cletus: he’s a total tosser and has been. how idiots look up to these ‘tards is kind of sad for that generation- they could have listened to original music or something. once these kids age they kinda feel stupid about it, if they live that long. and dragging nys laws into this isn’t all that reassuring, they have all sorts of lame laws that favor the criminal element.

    Like or Dislike: Thumb up 0 Thumb down 1

  14. Gustopher says:

    I might just be getting old, but I have little patience for twits who try to step up to the line, carefully not cross it, and do everything they can to make everyone else miserable.

    So, I think a “reasonable person” standard is appropriate. A big, fuzzy line that people will have trouble defining. Something that will need to be thrown to the jury to convict, but which gives prosecutors and police a fair bit of leeway to tell someone to stop being an a-hole, and threaten prosecution if they don’t.

    A lot of power to law enforcement, checked by a lot of power in the jury.

    Also, I have let my membership in the ACLU lapse.

    Like or Dislike: Thumb up 2 Thumb down 0

  15. legion says:

    @Grewgills: I see what you’re saying… in other situations I think I would agree, but my opinion right now is influenced by that asshat who shot the women in California because they wouldn’t sleep with him. He made numerous “cry for help/attention” style postings on FB and Youtube before he finally snapped, and the fact that, after making numerous such statements to/about his wife, he expanded his attention to schools and an FBI agent strongly implies (to me, anyway) that he was not getting enough push-back previously, and would likely continue getting more aggressive and dangerous. I believe he was, as others have mentioned, seeing how much of an asshole he could get away with being, but he was doing it in a way that made other people feel legitimately threatened.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Grewgills says:

    @legion:
    I agree that he was gaslighting and that at least some of his posts were serious enough that the forum shouldn’t matter. If he had kept it to the level of the examples cited in Doug’s article and kept it to his private FB page he would just be on jerk among many that air their dirty laundry in the public eye on FB. As it stands he made much more serious threats to see how far he could push threatening his ex before being arrested. He is an abusive prick and I have no sympathy for him.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. DrDaveT says:

    @Brian Carnell:

    This analogy was first introduced [...]

    It’s not an analogy; its a counterexample. If you don’t think it’s OK to yell “Fire!” in a crowded theater, then you don’t believe that speech (per se, simpliciter) is what’s protected. So we must distinguish between the kinds of speech that the First Amendment is intended to protect, and the kinds it is not. We agree that only an idiot could think that public dissent with government policy is not the protected kind.

    As for the case at hand, it is difficult to see how the state prosecutes the man in this case but doesn’t prosecute artists like Eminem for songs like “Kim”

    Is there a real person (by whatever name) who knew that s/he was the subject of the song? I think it matters. There is a necessary connection between the threatener and the threatened. The same threats, word for word, are not actionable if I put them on a message in a bottle and throw it into the sea, but are very actionable if I nail them to your front door.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. grumpy realist says:

    It’s like that doofus (too lazy to Google-fu) who posted some incredibly nasty stuff about what he was going to do to his wife to a like-minded group of friends and then, when caught, claimed he was just acting out the first stages of “a fantasy” but by no means was he going to actually kidnap and torture her.

    Yeah, the jury didn’t believe him either.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. bill says:

    @grumpy realist: the nyc cop who was going to eat her, literally!? sick dude.

    Like or Dislike: Thumb up 0 Thumb down 0