Supreme Court To Examine The Dividing Line Between Threats And Speech

[Mike]

The Supreme Court has decided to take up a case dealing with the idea of the theoretic "reasonable person" and how this supposedly objective standard holds up when dealing with alleged threats. This case features a very unsympathetic appellant -- one who has a history of making unpleasant comments online.

Pennsylvania man Anthony Elonis has historically enjoyed saying outrageous things on Facebook, such as how he would like to murder his estranged wife; shoot up an elementary school; sneak into an amusement park he was fired from to wreak havoc; slit the throats of a female co-worker and a female FBI agent; and use explosives on the state police, the sheriff's department, and any SWAT team that might come to his house. Elonis has never actually done any of these things, but he did spend the last three and a half years in prison for saying that he would. This week, the Supreme Court said it's going to re-examine the case, meaning we'll get a federal decision on whether threats made online need to be made seriously to send the threat-maker to jail, or just need to be taken seriously by a reasonable person threatened.

Elonis' argument is that his threats were just "rap lyrics" intended to be read by only his friends. He also argues he never targeted anyone (ex-wife, schools, FBI) with these comments (specifically pointing to the fact that he never "tagged" any of his "targets" using Facebook's notification system) and that the supposed threats were taken out of context -- that context being that Elonis was known for posting outrageous comments.

The lesson here seems to be that seeking negative attention from the internet also tends to net you additional attention from law enforcement, especially if your background isn't exactly clean. Elonis apparently harassed coworkers to the point of being fired from an amusement park job and some Facebook comments fantasizing/threatening violence towards his ex-wife prompted a real-life restraining order.

One of the problems with Elonis' case is that it asks the Court to find in favor of a very unsympathetic individual. It also asks it to ignore the objective standard so many courts have used and begin applying a subjective standard -- something more aligned with the reality of internet communication. There are other cases out there with more sympathetic protagonists, like Justin Carter, a teen who was arrested and thrown in jail (and held with a $500,000 bail) over some post-video game trash talking that included a mention of shooting up a school. To make the case against Carter, the comment was stripped of its context and presented as the teen's sincere desire to kill schoolchildren.

Social media interactions, when robbed of context, can often appear to be much more dangerous than they actually are. Simply holding that the reasonable person would view one specific comment or post as threatening hurts not only seemingly more "dangerous" people like Elonis, but also those who never truly uttered a threat (like Justin Carter). Since we can't expect the theoretical "reasonable person" to have access to the surrounding context, we expect the court to consider this along with the reasonable person's point of view.

It has long been known that people are more willing to say divisive and controversial things on the internet -- stuff they certainly wouldn't say in person. To hold these interactions to a "reasonable person" standard ignores the fact that the internet isn't particularly known for "reasonable" interactions. There's likely no "bright line" to be found here. Not everything threatening said online should be treated as a threat, but on the other hand, the tendency of internet interactions to be more exaggerated than those in real life shouldn't be used as a shield against criminal charges.

Hanni Fakhoury, a lawyer for the Electronic Freedom Foundation, makes a very good point -- one that could head off a lot of high-level court discussions over the "reasonable person" viewpoint.

Fakhoury says threats made online should be where police investigations start, not where prosecutions start.

"We've tolerated stupid speech a long time in this country, and we shouldn't let the Internet shake that balance," says Fakhoury. "We need a holistic approach to problems, not just, 'If you say a threat on the Internet, you're going to jail.'"

As we've often stated here, supposed threats should very definitely be investigated. But these investigations not only need to take into account whether the person has the means to carry them out, but also the surrounding context. It's simply not enough to declare something a threat because someone felt threatened -- a word some people deploy when they actually mean "appalled" or "offended." But that's often how these prosecutions start -- a very subjective situation which is only held to a supposedly objective viewpoint long after someone's already been jailed and gone to trial.

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Originally Published: Thu, 19 Jun 2014 20:04:13 GMT
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