Supreme Court takes on Facebook threats

Should a Facebook post threatening to leave your ex-wife's body "soaked in blood" or suggesting your son should dress as a "matricide" for Halloween and put his mother's head on a stick be considered a crime — or protected free speech?
What if those threats are made in the form of rap lyrics, or are followed by the playful emoticon of a face sticking its tongue out? Does it matter that these threats are made online rather than IRL, the Internet's acronym for In Real Life?
These are the questions that the Supreme Court is going to weigh when it rules on the case of Anthony Elonis, a thirty-one-year-old man who was convicted in 2011 for a series of threatening Facebook posts against his ex-wife and an FBI agent. On Monday, the Supreme Court heard oral arguments in his case (Elonis v. United States).
The case could change the way the law deals with online threats and reshape the reach of the First Amendment on the Internet. Here's why.

What is the case about?

In 2010, Elonis' wife Tara left him, taking their two young children with her. Soon after, Elonis also lost his job at the Dorney Park & Wildwater Kingdom amusement park in Allentown, Pennsylvania, after Amber Morrissey, an employee he supervised at the park, filed a series of sexual harassment reports against him.
After those reports were filed, Elonis posted a picture of the two at a Halloween event on Facebook, showing him holding a knife to her neck. The caption of the picture read: "I wish."
His public Facebook posts then started focusing on his ex-wife. In the form of his own rap lyrics, Elonis mused about killing her and masturbating on her dead body. He sometimes followed his posts with links to the Wikipedia entry on the First Amendment and saying he was just "exercising his constitutional right to freedom of speech."
His wife didn't see it that way, and successfully obtained a Protection From Abuse (PFA) order against him. Elonis' reaction? He posted even more threatening rap lyrics.
“Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?”
That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever
And hell hath no fury like a crazy man in a
kindergarten class
The only question is . . . which one?
After a visit from the FBI, Elonis took to Facebook once again — writing that the Feds had better bring a "SWAT and an explosives expert" next time because he might be "strapped wit’ a bomb."
A couple of week later, Elonis was arrested. In early 2011, a jury found him guilty of violating a law that makes it a crime to "transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another." An appeals court upheld the ruling in 2013, and Elonis has since spent more than three years of a 44-month sentence in prison.

What are Elonis' arguments?

Elonis' defense: he wasn't serious and was just trying to vent his frustration and unhappiness online with harmless Facebook posts inspired by rap artists such as Eminem. Elonis, his lawyers claim, even created a rapper-sounding pseudonym, "Tone Dougie," when he posted the controversial rants.
In essence, Elonis lawyers argue that his posts should be seen as rap lyrics and not as threats. Seeing those as a crime, they argued in their brief, risks changing the nature of speech protected by the First Amendment.

What does the government say?

The Department of Justice, which is prosecuting the case, argues that context is key. It doesn't matter what Elonis' true intention was when he posted those lyrics, but rather whether those lyrics caused fear in the specific people they targeted — and whether a "reasonable person" would think the statement is indeed a threat. In other words, those lyrics, according to the government, were "real threats" that have no constitutional protection.
"A bomb threat that appears to be serious,” the government argued in its brief, "is equally harmful regardless of the speaker’s private state of mind."

John P. Elwood

John P. Elwood, attorney for Anthony Elonis, speaks to reporters outside the Supreme Court in Washington, on Dec. 1, 2014.

Why is this a big deal?

This is the first time a case concerning Internet threats has made it all the way to the Supreme Court. It could set a precedent for how the law should distinguish between provocative, controversial and even offensive posts that are protected by the right to freedom of speech, and actual threats that could be considered a crime.
The case could have a significant impact on how the law sees online threats and harassment — which have become commonplace. Some 24% of adult American Internet users have witnessed some kind of physical threats online, and 40% of those users have personally experienced some kind of online harassment, according to the Pew Research Center.
"If the court rules for Elonis, those who are harassed and threatened online every day — women, people of color, rape victims and young bullied teens — will have even less protection than they do now, " Guardiancolumnist Jessica Valenti wrote on Monday. "Which is to say: not damn much."
The key issue here is whether the First Amendment protects violent speech and where the law should draw a line between that and a "true threat" — which the Supreme Court has established in the past that should not be protected. The problem is that no one is sure what counts as a true threat, as Amy Howe wrote in SCOTUSlog.
Another problem, of course, is how to interpret the context and the tone of Facebook posts. When judging whether a post or a tweet is a real threat, "is the 'reasonable person' going to be a teenager who plays League of Legends or a grandfather posting on a fly fishing forum?" as Sarah Jeong, an expert in Internet law issues and a recent Harvard Law School graduate, asked in a smart analysis for The Verge.
How the Supreme Court answers that question and all the others in this case, she noted, "could open the door to a flood of prosecutions over careless Internet postings."

What happens next?

The Supreme Court will issue a decision; it's unclear exactly when. It's also hard to predict how the Justices will rule in this case, given that they are notoriously challenged when dealing with new technologies and Internet issues.
The most relevant precedent here is the 2003 ruling in Virginia v. Black, where the Supreme Court found that a burning a cross was not in itself a criminal threat.
During the oral arguments on Monday, one Justice lamented that the "true threats" standard is "a most unhelpful phrase." Another suggested the First Amendment should be put aside to focus on what the necessary proof is when dealing with the law in question.
Chief Justice Roberts even quoted Eminem when arguing with the government's representative, Deputy Solicitor General Michael Dreeben.
"What about … 'Dada make a nice bed for mommy at the bottom of the lake,' 'tie a rope around a rock;' this is during the context of a domestic dispute between a husband and wife. 'There goes mama splashing in the water, no more fighting with dad,' you know, all that stuff," Roberts asked. "Could that be prosecuted?"
Still, some were skeptical of Elonis' lawyer's arguments. "This sounds like a roadmap for threatening a spouse and getting away with it," Justice Samuel Alito said. "You put it in rhyme and you put some stuff about the Internet on it and you say, 'I'm an aspiring rap artist.'"
As SCOTUSblog noted after the arguments, the Justices launched "a flurry of often-contradictory questions" to Elonis' lawyer.
And that confusion could continue for some time. Elonis could even end up facing a new trial, if the court finds that in order to consider an online post a crime prosecutors need to prove beyond a reasonable doubt that there really is intent to threaten.

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