In a case that judicial analysts say represents a significant test of just how far people can go to exercise their free speech rights on the Internet, the Supreme Court has just issued a ruling that threats made on Facebook are “protected unless they are malevolent or reckless.” USA Today reports that free speech advocates are happy, while groups that defend victims of domestic violence are not.
The high court’s action came after consideration of social media threats made by a Pennsylvania man named Anthony Elonis. According to the USA Today coverage of the ruling, “Elonis was 27 and recently unemployed in Pennsylvania five years ago when he began posting threats against his estranged wife and others, from a generic kindergarten class to the FBI agents who came to his door. He was convicted on four counts of transmitting threats and sentenced to 44 months in prison. He completed his term a year ago.”
Lower courts had been split regarding the nature of those online threats — were they serious and malevolent; or, as Elonis claimed, simply an exercise of his right to “artistic expression,” even though they contained specific references to violence?
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“‘Did you know that it’s illegal for me to say I want to kill my wife?’ Elonis wrote in one of many posts. ‘It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say.'”
The Supreme Court’s ruling, while close to unanimous, saw the justices split in a very unusual way. Chief Justice John Roberts authored the decision, while Justice Samuel Alito dissented in part, and Clarence Thomas came down against the finding that the threats made by the Pennsylvania man were constitutionally protected speech.
CNN’s coverage of the court’s decision notes “The ruling marks the first time the Court addressed the implications of free speech on social media. It is a narrow ruling and the Court did not address the larger constitutional issue.”
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In arguing to uphold Elonis’ conviction that the Court just threw out, government lawyers said the threats the man made on Facebook could reasonably be interpreted as serious and credible, instilling fear in their targets. Groups that advocate on behalf of the victims of domestic violence agreed, as USA Today noted: “The government was backed by groups such as the National Network to End Domestic Violence, which cited a survey of 759 victims’ service agencies that found nearly 90% of them had cases of threats delivered via technology.”
The man at the center of the threat controversy, Anthony Elonis, is not off the legal hook. His case will be sent back to a lower court to determine whether he really meant what he said in his posted threats or whether he was just blowing off steam in a way that would not be considered illegal.
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