By Julia Glum | International Business Times
The Supreme Court is reviewing whether social media threats should be considered criminal acts. Reuters
The U.S. Supreme Court is debating the free speech rights of Facebook users as its nine justices prepared Monday for an appeal from a man sent to prison over his violent social media posts. The court was expected to hear an hour of arguments in Elonis v. United States, the case that could set a precedent on whether people can be prosecuted for what they say on the Internet.
The appeal revolves around Anthony Elonis, a 31-year-old theme park employee from Pennsylvania convicted for breaking a federal law that prevents people from threatening each other, the Associated Press reported. Threats aren’t covered by the First Amendment if they’re “true” — in other words, if they scare a reasonable person and could be carried out — but some argue that social media posts can be too easily misinterpreted.
Analysis by Chris Ingle, Chair of Rose Law Group Cyber Law Department:
The United States Supreme Court is considering a case that tests the limits of free speech on the Internet. In Elonis v. United States, Case No. 13-983, the issue is whether the defendant’s violent Facebook posts would cause a reasonable person to believe that the defendant was making actual threats of physical violence. The defendant claims that he was imitating rap artists who frequently use threats of physical violence as lyrics in a song. Mr. Elonis, who came to the attention of authorities after posting threats to kill his former wife, compared himself to Eminem, who had also published threats to kill his former wife in various songs. Mr. Elonis argues that if Eminem can say such things about his former wife in a song, then certainly Mr. Elonis can say similar things about his own former wife on Facebook.
Framed in that light, the case could appear to be a close call. However, I don’t think it actually is a close call. Eminem published his statements as part of a song. I think most people understood that if he were really serious about killing his ex-wife, he would not express that intent and publish it to the entire world. Instead, it seems far more likely that his lyrics were intended to express his emotions and thoughts, and at the end of the day, the real goal was to sell the music. Mr. Elonis, on the other hand, has no similar artistic characterization of his statements. Instead, he posted fairly graphic threats on Facebook detailing the harm he intended to inflict on others, including his former wife, law enforcement officers, and random children. I do not think the public understood that to be artistic hyperbole. I think the public rightfully understood those statements to be exactly what they were death threats. If a person made such statements to me, I would report them to the police in a heartbeat.
I think Mr. Elonis’ lawyers have come up with the best defense they possibly can by comparing his statements to rap lyrics, but at the end of the day, there is a difference between an established rapper saying violent things as part of a song and a non-artist making explicit death threats on Facebook. The former can be understood to be artistic expressions of angst, whereas the latter is simply a threat, and should be treated as such. It is a delicate area, and the First Amendment enjoys one of the highest levels of protection under the law, but there are limits to what can be considered free speech. Mr. Elonis may be close to conduct that enjoys legal protection, but close does not always cut it. There has to be a line somewhere, and he appears to have crossed it.
Rose Law Group has a cyberlaw department with substantial experience defining the limits of free speech on the internet. If you want a consultation please call (480) 505-3936 and ask to speak with Christopher Ingle.
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