By Brent Kendall | The Wall Street Journal
The Supreme Court agreed to take up a free speech case that examines what it means to threaten someone in the Internet age.
The court said it would consider an appeal from a Pennsylvania man convicted of making threats on Facebook against his estranged wife, law enforcement and local elementary schools.
After his wife obtained a protection-from-abuse order, defendant Anthony Elonis took to Facebook and wrote on his page, “Fold up your PFA and put it in your pocket Is it thick enough to stop a bullet?”
In another post, Mr. Elonis wrote, “Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined.” And after an FBI agent visited his residence, Mr. Elonis said that law enforcement officers should bring an explosives expert on their next visit, “Cause little did y’all know, I was strapped wit’ a bomb.”
A federal jury convicted Mr. Elonis in 2011 on four counts of transmitting threatening communications in interstate commerce. He was sentenced to 44 months in prison.
Observations by Rose Law Group Cyber Law attorney Logan Elia:
The Internet emboldens us. People intimidated by public speaking –most of us – might think nothing of posting a comment to a news article, even though the comment could be read by thousands or even millions of people. But this emboldening effect does more than just enrich our discourse by allowing us to hear the legitimate thoughts of otherwise quiet people. It also has a cost.
Internet trolls take advantage of the Web’s seeming safety and forgiveness to say things that they would never say in public. If someone voiced an unpopular opinion in a group, there might be debate. But online, it wouldn’t be unusual for some troll to write that the unpopular poster deserves to have his mouth sewed shut. Ad hominem attacks and threats – mostly blustering – have become part of online life in heated forums or comments threads.
The United States Supreme Court is about to weigh in on this. The law generally does not allow you to threaten someone. We think that our First Amendment rights to free speech do not include a right to terrorize other people. But we also recognize that there is a difference between truly terrorizing another person and threatening them in jest.
The distinction in the law turns on whether a threat is a “true threat.” Generally, that turns on whether the person making the threat actually intends to threaten. This makes sense and it was a good rubric when most communication was face-to-face. We can generally tell the difference between someone who means to threaten us and someone who means to joke with us. But the Internet changes that. A post is divorced of any tone of voice or visual indicia of intent. My empty threat – maybe a joke in bad taste – might be legitimately mistaken by the person who sees it on Facebook. This causes problems and it is the central issue before the court.
The Supreme Court has already decided that the First Amendment allows us to prohibit true threats. The question is whether we can prohibit seemingly true threats. That is to say, what if I threatened you in jest, but my threat seemed so real that you – or other reasonable people – misunderstood my intent and were truly terrorized? Have I committed a crime or merely engaged in First-Amendment-protected, yet appalling speech?
The issue becomes even more complicated when we recognize how widely Internet speech is disseminated and how rapidly it can become divorced from its intended context. What if you threaten your friend on Facebook in jest. You tell him that you plan to bring a bomb on the airplane for your upcoming vacation to Lockerbie. You post a picture of your bomb, which you and your friend both know to be a novelty alarm clock. Your friend understands the jest. But someone else on Facebook is truly afraid. Does that true fear trump your benign intent?
I think that we ought to tread very carefully whenever we regulate speech. I do not want anyone to be terrorized. But I think it is worse to imprison people for tasteless jokes. A misunderstanding should not be a crime. And if we are worried about vicious Internet trolls, there are civil remedies for the most egregious conduct.
