When Facebook updates include threats or harassing language, are those real threats? Or are angry subtweets and Facebook rants the digital equivalent of muttering under one's breath? Does it matter if a threatening-sounding post was actually meant to be a threat? Or does it only matter if listeners took it to be one? In oral arguments yesterday the justices of the U.S. Supreme Court weighed these issues in Elonis vs. United States, a test of the limits of free speech in the age of social media.
The digital world can be a toxic place. In a recent Pew Research Center survey, as many as 40 percent of adult internet users reported having been harassed online, often by total strangers. In recent months, the depths of internet harassment hit the mainstream when a number of prominent women were chased from their homes or forced to cancel public appearances because of threatening messages.
The case currently in front of the Supreme Court concerns threatening messages that hit much closer to home: the justices will consider whether Anthony Elonis' lyrical Facebook updates threatening to kill his estranged wife constituted a real threat. But the outcome of the decision will have repercussions for the larger online worl.d
At the heart of the issue is the question of intent, says the Associated Press:
Elonis argues that his lyrics were simply a crude and spontaneous form of expression that should not be considered threatening if he did not really mean it. The government says it does not matter what Elonis intended, and that the true test of a threat is whether his words make a reasonable person feel threatened.
Yet as the Atlantic carefully points out, “[t]hreats are not illegal because they signal an impending crime. Threats themselves are the crime.”
To understand why this is true, imagine the delinquent high-school kids who declare a holiday by phoning a bomb threat to the school. There is no bomb, and the kids wouldn’t set one off if they could. Nevertheless, school must be canceled. The building has to be evacuated. The bomb squad must don protective gear and sweep the classrooms. Students will suffer nightmares. And authorities may someday be tempted to ignore notice of a genuine planned bombing. The threat itself is the harm.
After the day's arguments, it's unclear which way the Supreme Court justices seem to be leaning, says SCOTUS blog:
The Supreme Court showed on Monday that it is willing to consider holding people responsible for going online to “shoot off their mouths,” as one lawyer put it, but the Justices seemed well short of knowing just how to do that. An hour-long argument over crime via social media probed, with not much success, for a legal standard of proof to judge when a rant goes from being offensive to being threatening.
Like all Supreme Court decisions, this one will take some time to puzzle through. The biggest news to come out of the oral arguments: Chief Justice John Roberts quoted Eminem.