What constitutes a serious threat and what is protected by free speech under the law? This is the issue under consideration by the Supreme Court this week and the decision they make will influence the landscape of social media in the years to come.
The case, Elonis vs. United States, follows a Pennsylvania man who, in 2010, estranged from his wife and children, began posting explicit and threatening material directly targeting her on his Facebook page. His threats, including graphic descriptions of murdering and torturing his wife, led her to obtain a restraining order.
Elonis also made reference to killing the FBI agent investigating the case and threatened a school shooting at a kindergarten. His defense revolves around free speech, with his lawyers claiming that he was merely venting his feelings about a broken marriage in a therapeutic manner. His defense claims his writings should be protected in a manner akin to rap lyrics or other artistic expression.
Advocates for domestic violence victims are vocal that this is an opportunity for the justice system to send a clear message to perpetrators, and argue that Elonis crossed a clear line between song lyrics and conscious intimidation. The court is set to decide.
The case is interesting in a number of areas, particularly because although the threats were made only in the digital realm, that is not what the case hinges on. Elonis has already been convicted for the threats. The lawyer for his appeal continues to claims that his intent was not to injure or intimidate, and therefore should be covered under free speech.
What constitutes a threat and the importance of intent in categorizing that has long been up for debate by trial lawyers, but Deputy Solicitor Gen. Michael Dreeben, the lawyer for the Justice Department, plans to argue that threats which seek to intimidate and threaten are serious crimes. Another issue in play is intent – can serious and disturbing messages such as Elonis’ be prosecuted if the intent to harm is unclear.
Justices Ginsburg, Alito, and Roberts have already made spoken in favor of upholding the previous conviction, but the court’s decision and its full impact remain to be seen.
LaTimes.com, “Supreme Court appears unlikely to protect Facebook threats,” David Savage, 1 December 2014
cnn.com, “Facebook threats case heard at Supreme CourtMK Mallonee and Pamela Brown, 1 December 2014