Inside the First Amendment by Gene Policinski

When we say something that might be threatening, how much does where we say it matter?

The U.S. Supreme Court agreed this week to examine that question from a new angle — the increasingly popular method of online comments and posts on social media, as distinct from directed or face-to-face exchanges.

The First Amendment generally shields us from being punished for what we say, but there are exceptions, among them what is called a “true threat.”

Courts have used two approaches in dealing with threats. One requires police and prosecutors to show that the person making the threat genuinely intended harm. The other — and one used more often in recent years — is whether “a reasonable person” would be put in genuine fear for their safety or their life.

Threats also need to be real to meet these tests. Wishing aloud that a certain person would be struck by a meteor, for example, may be crude and tactless, but clearly the speaker cannot make that occur. Threats must also be made to a certain person or identifiable group.

Threatening to kill someone during a face-to-face argument, or via a letter or phone call, very likely would warrant prosecution.

But now it seems the court will come face-to-face with a technological twist — one that will ask them to further define or finally endorse one of the two legal standards: What if the threats are comments or posts on a social network like Facebook? Are such posts — not specifically sent to a person, who may be named — enough to support a “reasonable person” standard?

The court may well also consider what to make of the distinctions based in individual privacy settings on various social media websites, which can range from posts that are totally public, through layers in which posts are directed to individuals’ accounts or small group “walls” but still public, to directed posts that are more like a personal e-mail or phone call.

The case before the court involves a husband and wife who separated in 2010. Court records say Anthony Elonis sometime later began writing on his Facebook page about killing his wife and others, including an FBI agent who was investigating his actions.

Elonis later defended his posts as just “therapeutic,” even art in the style of rap lyrics, and claimed they did not meet the legal requirements of a “true threat.” However, when the gory postings continued, and the subjects of his rants felt threatened, Elonis was convicted of violating a federal law that prohibits the use of interstate communications for threats to individuals, and sentenced to nearly four years in prison.

Elonis says he never actually intended to harm anyone, and that the existing law was drawn up in a pre-Internet era, and ought to now be adjusted to recognize a new form of expression, on sites like Facebook and Twitter.

Legal scholars and Elonis’ lawyers note that courts even now differ on how and when to apply the two existing standards.

In 2002, the Arkansas Supreme Court upheld a juvenile court conviction of a high school student for writing rap lyrics it said were a “true threat” of physical violence. In that case, the lyrics were written specifically for a fellow student, delivered to her and she was, the court said, “intensely frightened and upset” by the threat and believed the juvenile might follow through on the threat because he had a criminal record.

But in 2012, a federal appeals court in California refused to reinstate the conviction of an Arizona man accused of planning a Super Bowl massacre, saying a rambling “manifesto” did not constitute a threat to people, since it was addressed to media outlets not specific persons, and that man’s threat to “test the theory that bullets speak louder than words” was not sufficient to support a conviction under federal law.

The Supreme Court arguments will focus on how to apply to Elonis’ arguments the latest decision it made on “true threats.” In 2003, in Virginia v. Black, the court struck down a state law that held any cross-burning was a form of intimidation, saying proof of “threat of intimidation” was required, since the action could be what the court called a “message of shared ideology.”

In upholding Elonis’ conviction, the Third Circuit Court of Appeals said while an action such as cross-burning may or may not always constitute a threat, Elonis’ Facebook posts made specific threats to named individuals — thus avoiding a conflict with Virginia v. Black.

The issue raised by Elonis is whether the online distance that social media puts between the person “speaking” and those “listening” makes all the difference between protection and prosecution.

 

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org. The institute’s Megan Chester contributed to this column.