The Supreme Court will hear a case centered around how to consider threatening posts made to Facebook.
The Supreme Court has agreed to hear a case centered on threats made through social media, a topic that has major ramifications for free speech and the Internet.
The case at hand centers around Anthony Elonis, who was sentenced to 44 months in prison and three years of supervision in October 2011 after a jury found that his Facebook posts constituted threats not protected by the First Amendment. Elonis claimed his posts were therapeutic and not meant as threats, and therefore protected under freedom of speech.
The important question in the case is whether a threat becomes a crime if a "reasonable person" considers it a threat, or if it needs "subjective intent" (if what was posted was intended as a threat).The important question in the case is whether a threat becomes a crime if a "reasonable person" considers it a threat, or if it needs "subjective intent" (if what was posted was intended as a threat).
More broadly, the case will also set important precedents on a number of fronts including the use of social media in trials, the interpretation of creative or artistic content such as rap lyrics as threats and the limitations of the First Amendment in online communication.
Posts from Elonis included allusions to killing his now ex-wife and committing a school shooting.
Elonis claimed he had written the posts as part of a "Tone Dougie" persona he had created, and that he had just been venting frustration about his life.
The conviction of Elonis has been upheld in appeals, with courts finding that a "reasonable person" would regard Elonis' posts as threats, despite whether he meant them as such.
The court also told the sides to prepare to argue if threats made online require "proof of the defendant's subjective intent to threaten."
The main precedent for this case is a 2003 ruling in Virginia v. Black, which found that a Virginia law against burning a cross was unconstitutional, since the act itself is not evidence of a threat. The court said that in such cases, prosecutors also needed to prove intent.
A Third Circuit Court of Appeals rejected Elonis' move to dismiss his case based on the Virginia v. Black case, stating that the interpretation of actions required proof of intent but words do not.
"... cross-burning is conduct that may or may not convey a meaning, as opposed to the language in this case which has inherent meaning in addition to the meaning derived from context," the court wrote in its ruling in 2003.
That case did not explicitly touch on the intersection of speech and technology. The Elonis case will have to take into account topics such as whether posting things like violent rap lyrics to one's own page can be considered a threat, and whether intent would matter in a court of law.
"Understandably, scholars, journalists and rap artists alike are sounding alarms about the First Amendment implications of using evidence gathered from social media, as well as the specific targeting of rap music," professors Clay Calbert, Erik Nielson and Charis Kubrin wrote forForbes.
"If the Supreme Court agrees to hear U.S. v. Elonis, it could address both, providing much needed guidance to a court system that is struggling to apply old precedent to a rapidly changing world," they wrote.