Next week, the Supreme Court will hear arguments in a First Amendment Case as to whether threatening speech posted on Facebook and other social media breaks the law.
The appeal is up for argument on December 1. Social media companies already have rules to manage individual speech online but the outcome of this case could affect the way people express themselves on Facebook, Twitter, YouTube and other sites.
The freedom of speech advocates that the Constitution gives people the right to express what they want and such a ruling could chill legitimate speech on the social media.
It all began when Anthony Elonis, a Bethlehem, Pa., man threatened his estranged wife in a series of Facebook posts. He was convicted and served over three years in a federal prison. His attorney defended him on the grounds that his posts were similar to songs such as “Kim” and “Kill You” from Eminem’s album “The Marshall Mathers LP” where the artist also sings about killing his wife and mother. His lawyer also says that his client was merely venting frustration over the collapse of his marriage and the loss of his job.
The Justice Department has stated that the fears associated with limiting legitimate speech are being blown out of proportion. “The reason that [Mr. Elonis] can confidently cite the rapper Eminem’s lyrics as examples of art, rather than threats, is that no reasonable person would understand those lyrics, in the full context in which they were delivered and publicized,” to constitute an intentional threat of violence, wrote U.S. Solicitor General Donald B. Verrilli Jr. He also points out that juries are perfectly capable of distinguishing a metaphorical expression from a clear and sinister threat.
While Facebook is not named as one of the parties involved in the case, it is believed that the company is following it. It is also being pointed out that the high court has never clearly stated how intent can be proven in “true threat” cases. In 1969, a threat conviction case was thrown out on the grounds that while the speech may have been vituperative, abusive and inexact, it was still constitutionally protected.
Any conviction of threatening another person needs to be proven as a subjective intent to threaten. It cannot simply be based on an individual’s interpretation and needs to have sufficient evidence to back it up.
