The Supreme Court heard a case on Dec. 1 about a man who was convicted in 2010 on four counts for writing threatening posts on his Facebook page. The posts targeted his wife, local law enforcement, an elementary school, and a Federal Bureau of Investigation agent. The case involves the First Amendment’s guarantee of the freedom of speech.
This is the first time that the Supreme Court addressed online speech and this decision will “determine how far First Amendment protections extend on social media sites like Facebook.”[i]
Mr. Elonis, 31, claims that his Facebook posts were rap lyrics that served as an outlet to let off steam after a difficult time in his life. At the time of his posts, Mr. Elonis was fired from his job and Mr. Elonis’ wife left him after seven years of marriage, taking their two young children with her. Mr. Elonis was sentenced to 44 months in prison and three years of probation.[ii]
One of Mr. Elonis’ posts that targeted his wife said, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”[iii]
Now, the Supreme Court must define “a legal standard of proof to judge when a rant goes from being offensive to being threatening.”[iv] In Virginia v. Black (2003), Virginia made it unlawful to burn a cross with the intent to threaten. The Court upheld the Virginia law but never decided whether or not the speaker had to have the intent to carry out a true threat in order to be convicted of making a true threat.[v]
Thus, the issue in the Elonis case is the following: Does a speaker have to have the intent to carry out a true threat in order to be convicted of making a true threat? Or does the recipient only have to be afraid in order for the speaker to be convicted?
Facebook has become a cultural phenomenon specific to Mr. Elonis’ generation. Facebook posts contain hyperbole, rants, and trash talk. But, to what level of provocative speech can the First Amendment protect a speaker?
Let us look at a precedent case. Watts v. United States (1969) was a case about a 19-year-old man who said at a political rally that he would kill President Lyndon Johnson if he were drafted into the Armed Forces. The Court overturned Mr. Watts’ “true threat” conviction and decided that Mr. Watts’ words amounted to political hyperbole. In reaching this decision, the Court relied on the context of Mr. Watts’ speech: the statement was made during a political debate, it was expressly made conditional upon an event, and both Mr. Watts and the crowd laughed after the statement was made.[vi]
I see two ways that the Court could use Watts as a precedent. In favor of Mr. Elonis, the Court could find that Mr. Elonis’ Facebook posts were a form of emotional hyperbole. On the United States’ side, the Court could decide that Mr. Elonis’ speech was neither “big talk” nor meant for the political arena.
I attended the oral argument at the Supreme Court for Elonis v. United States to try and figure out what the justices are going to decide.
Justice Ruth Bader Ginsburg asked, “How does one prove what’s in somebody else’s mind?”[vii] Justice Ginsburg seemed to agree with the reasonable person standard, in which a reasonable person decides whether or not the words would put the recipient of the speech in fear. However, John Elwood, Mr. Elonis’ attorney, argued in the petition for certiorari that Mr. Elonis’ posts were “therapeutic efforts to address traumatic events rather than intentional threats.”[viii]
Chief Justice Roberts did not seem to agree with Mr. Elwood’s argument. Chief Justice Roberts said, “Yes, of course, it shows that [Mr. Elonis] was going to do something dangerous. It’s a good thing that he had this outlet of the Internet so he didn’t have to do it.”[ix]
Michael Dreeben, deputy solicitor general for the Department of Justice, represented the United States. Mr. Dreeben said that “people who are speakers of the English language and who know that the words—what the meaning of the words is that they speak are accountable for the consequences of those words.”[x]
Justice Elena Kagan proposed to Mr. Dreeben that there should be some kind of “buffer zone to ensure that even stuff that is wrongful maybe is permitted because we don’t want to chill innocent behavior.”[xi] Mr. Dreeben responded, “There are plenty of ways to express yourself without doing it in a way that will lead people to think this guy is about to hurt somebody.”[xii]
The organizations that filed amicus briefs in support of Mr. Elonis include: the American Civil Liberties Union (ACLU), Center for Individual Rights, Marion B. Brechner First Amendment Project, Reporters Committee for Freedom of the Press, Rutherford Institute, Student Press Law Center, and Thomas Jefferson Center for the Protection of Expression.
The ACLU explained in their brief that the “use of an objective test for online communication would inevitably chill constitutionally protected speech, as speakers would bear the burden of accurately anticipating the potential reaction of unfamiliar listeners or readers.”[xiii]
The organizations that filed amicus briefs in support of the United States include: the Anti-Defamation League, Criminal Justice Legal Foundation, Domestic Violence Legal Empowerment and Appeals Project, National Center for Victims of Crime, and National Network of Domestic Violence.
Justice Samuel Alito seemed to agree with the amici that deciding in favor of Mr. Elonis would pose “a very grave threat to domestic violence.”[xiv] Justice Alito added, “this sounds like a roadmap for threatening a spouse and getting away with it.”[xv]The Court is expected to decide this case by the summer.[xvi]
[i] Schiffbauer, Anna. “Supreme Court hears social media threats case.” Student Press Law Center. December 1, 2014. http://www.splc.org/article/2014/12/supreme-court-hears-social-media-threats-case
[ii] United States v. Elonis, United States Court of Appeals for the Third Circuit. June 14, 2013. http://www2.ca3.uscourts.gov/opinarch/123798p.pdf
[iii] Ibid.
[iv] Denniston, Lyle. “Argument analysis: Taking ownership of an Internet rant.” SCOTUSblog. December 1, 2014. http://www.scotusblog.com/2014/12/argument-analysis-taking-ownership-of-an-internet-rant/
[v] Lockhard, William B., Yale Kamisar, and Jesse H. Choper. Constitutional Law: Cases, Comments, Questions. 11th ed. St Paul, MN: West Pub., 1980. 913. Print.
[vi] Watts v. United States 394 U.S. 705 (1969). https://supreme.justia.com/cases/federal/us/394/705/case.html
[vii] Elonis v. United States Oral Argument. December 1, 2014. 4.
[viii] Cert petition for Elonis, 22.
[ix] Elonis v. United States Oral Argument, 5.
[x] Ibid., 29.
[xi] Ibid., 46.
[xii] Ibid., 47.
[xiii] Amicus Curiae Brief of the American Civil Liberties Union, the Abrams Institute for Freedom Expression, the CATO Institute, the Center for Democracy & Technology, and the National Coalition Against Censorship, in Support of Petitioner. August 22, 2014. 27.
[xiv] Denniston and Elonis v. United States Oral Argument, 60.
[xv] Denniston and Elonis v. United States Oral Argument, 59.
[xvi] Totenberg, Nina. “Is A Threat Posted On Facebook Really A Threat?” December 1, 2014. http://www.npr.org/2014/12/01/366534452/is-a-threat-posted-on-facebook-really-a-threat