Self-expression vs. real threats
When does venting on social media become a crime? The U.S. Supreme Court is exploring the line that pits an individual’s right to free expression against the felony of making a “true threat” against another person.
Before there was such a thing as online media, it was easier to determine the motives and the intended audience of threatening actions and behavior. But things are more complicated now.
Consider the case of Anthony Elonis, a 27-year-old amusement park worker from Pennsylvania, who was convicted of making criminal threats against his ex-wife and others and sent to federal prison for 44 months.
Elonis committed his crimes on Facebook. After a bitter divorce, he adopted the pseudonym “Tone Dougie,” posted disclaimers about his “fictitious lyrics,” and started posting violent threats against his ex-wife in the form of rap lyrics.
Elonis thought he was covered under the broad protection of the First Amendment, and even posted First Amendment articles alongside his threatening prose, which included his purported intention to smother his ex-wife with a pillow, mortar-bomb her house, and bury her in a shallow grave.
“I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts,” he wrote.
And when she got a restraining order against him due to his Facebook posts, Elonis continued posting, writing that the paper wouldn’t be thick enough to stop a bullet, and claiming that his artistic expression as an aspiring rapper covers him from prosecution.
“Me thinks the judge needs an education on ‘true threat’ jurisprudence,” Elonis wrote. “And prison time will add zeroes to my settlement.”
The appeal to Elonis’ conviction, which came up for oral argument this week in the U.S. Supreme Court, is a new opportunity for the court to examine the “true threat” law in the social media world.
Eleven years ago, the high court invalidated a Virginia law that made all Ku Klux Klan cross burnings illegal. In overturning that law, the justices ruled that if the cross burning was simply a “shared message of ideology,” it was protected speech. But a cross burning could be illegal if it was done with “the intent to intimidate.”
First Amendment groups are backing Elonis, saying that while his posts were vile, they were protected speech in a medium that is rampant with anonymous, hateful postings.
Facebook, Twitter and other social media platforms have become a haven for “anonymous trolls wreaking havoc on message boards and individuals who, perhaps emboldened by too much ‘digital courage,’ treat the internet as a global sounding board where anything goes,” wrote J. Joshua Wheeler, the director of the Thomas Jefferson Center for the Protection of Free Expression at the University of Virginia.
In another case, Justin Carter, an 18-year-old Texas teenager, is awaiting trial due to an online rant he posted last year while engaging in a message-duel as he played the online multi-player battle arena video game League of Legends.
The Supreme Court justices waded gingerly into the subject this week.
Justice John Roberts read aloud the lyrics of the rapper Eminem, lyrics that spoke of killing his ex-wife, and asked the government lawyer if Eminem had committed a crime.
“No,” answered Michael Dreeben. “Because Eminem said it at a concert where people are going to be entertained. This is a critical part of the context.
“It wasn’t as if he stated it to her in private or on a Facebook page after having received a protection-from-abuse order,” the lawyer said.
Meanwhile, Justice Ruth Bader Ginsburg wondered aloud how the law was supposed to sort between real threats and empty ones.
“How does one prove what’s in somebody else’s mind?” she asked. “This case, the standard was, ‘Would a reasonable person think that the words would put someone in fear,’ and reasonable people can make that judgment. But how would the government prove whether this threat in the mind of threatener was genuine?”