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What Today's Facebook Supreme Court Case Means for Free Speech Online

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How carefully do you think about the things you post on Facebook? Depending on the outcome of today's Supreme Court hearing, that answer could soon be way more carefully than you ever have before.

Today, the nine justices will be hearing Elonis v. United States, the very first Supreme Court case to directly deal with our freedom of speech rights on social media. In other words, whatever the Court ends up deciding will seriously impact what we can and can't say on the internet—and just how far First Amendment protection can stretch.


The Case

Five months after Anthony Elonis' wife Tara left him—and took their two kids with her— he decided to post the following on Facebook at various points:

  • If I only knew then what I know now... I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.
  • Tell [our son] he should dress up as Matricide for Halloween. I don't know what his costume would entail though. Maybe [Tara's] head on a stick? :-p.

Understandably—and emoticon notwithstanding—Tara felt threatened, so she requested a protection-from-abuse order from her local court in Reading, PA, which the court happily granted. Three days later, Elonis followed up by posting this video, but with his own, slightly adjusted caption:

I also found out that it's incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room. Yet even more illegal to show an illustrated diagram. [Elonis then included a self-drawn diagram.] Art is about pushing limits. I'm willing to go to jail for my Constitutional rights. Are you?

Just two months later, in December of 2010, Elonis was convicted "under a federal law that makes it a crime to use a form of interstate communication (like the Internet) to threaten to injure another person," according to The New York Times.

Now, after spending the past three years in prison, Elonis is about to challenge his conviction in front of the Supreme Court. The Court decision on the legitimacy of the threats could set a precedent for how free speech is protected on social media—and it's a slippery slope.


The Precedent

While we have yet to hear any official ruling regarding threats on social media specifically, similar issues have come up in the past. Generally, the rule has been that "true threats," or a threat that is not overtly a joke (and even then, no guarantees), can in fact be persecuted by law, making it an exception to the First Amendment.


In the 2003 Supreme Court case of Virginia v. Black, Sandra Day O'Connor wrote that "true threats" don't even need to necessarily be carried out to be criminal. According to Justice O'Connor, they do plenty of damage all on their own:

The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur....

As the history of cross burning in this country shows, that act is often intimidating, intended to create a pervasive fear in victims that they are a target of violence.


And while Elonis insists that he didn't actually mean any of the murderous things he was saying, Tara was felt fear just the same, saying in court that she "felt like [she] was being stalked" and "felt extremely afraid for [her] and [her family's] lives."

So now, the Supreme Court has to decide what's more important: Tara's sense of security or Elonis' freedom to violently remix Eminem lyrics.


Why the outcome matters

If the Facebook post is protected as free speech

Most people seem to agree that this is the most likely outcome. And the Supreme Court has a long history of consistently ruling in favor of the First Amendment, no matter how horrendous or absurd that expression may be (think "animal crush" abuse videos). Which, while occasionally hard to stomach, makes sense. Limiting free speech in any broad way would be a slippery slope that alters the very foundation of the Constitution itself.


Of course, overruling Elonis' conviction would mean that we're back to square one in terms of what can and can't be legally said online. Or more specifically, what could be legally termed "abuse." As William Marcell, a law professor at the University of North Carolina, Chapel Hill, told Time:

Society is still struggling to really figure out how the Internet works and how it affects people, both users of the Internet and subjects of the speech on the Internet. I think the court might want to buy a little bit more time to see if a threat over the Internet is really as serious as one face-to-face.


And at least according to a brief by the Electronic Frontier Foundation, while threats over the internet should still be taken seriously, they may not be quite the same as those made in person. Particularly as "clinicians and researchers have observed that 'people say and do things in cyberspace that they wouldn't ordinarily say and do in the face-to-face world.'"

The sort of disinhibition we experience online—thanks in a large part to the sense of anonymity and distance the internet allows—is, as the EFF explains, an indicator of "an attempt to better understand and develop oneself, and to explore new emotional and experiential dimensions to one's identity." Which is more or less exactly what Elonis argued he was doing.


After all, we've all said things we didn't mean, even more so in the online outlets that allow us to send out moments of anger in rage into the great abyss where we don't actually have to see how our words affect others.

If the Facebook post is deemed a true threat

While this would certainly be a victory for anyone who's ever suffered from online abuse, a decision like this could severely limit what we say online—and not necessarily just in terms of "true threats." According to Time:

If the court rules against Elonis, artists could be more hesitant to share anything that could be perceived as threatening — a slippery slope.


Because, at least to hear Elonis tell it, what he was writing was his own, perverse sort of art. In his statement to the jury, Elonis pleaded that he "would never hurt [his wife]" and that he "never intended to threaten anyone. This is for me. This is therapeutic." Which might seem like an easy out, but it's exactly this kind of speech that the First Amendment protects, even if that speech is ""vituperative, abusive, and inexact." And according to the ACLU's brief on Elonis' case, it should stay that way.

A statute that proscribes speech without regard to the speaker's intended meaning runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed.

Moreover, where the line between protected and unprotected speech is unclear, a speaker may engage in self-censorship to avoid the potentially serious consequences of misjudging how his words will be received.... including core political, artistic, and ideological speech.


In other words, creating a precedent for punishing supposedly "innocuous" threats made in jest could mean an end—or at least a sever stifling—to the sorts of online freedom we've enjoyed thus far.

The Result

... won't come out until sometime in 2015. The justices begin hearing the case today, and at the end of the week,, they'll make their preliminary votes and choose majority and dissenting opinion writers. Then, likely sometime at the end of the current term in May or July 2015, we will finally hear the ruling on our internet futures.