In a closely watched decision that weighs the protection of free speech against protecting people from online abuse, the United States Supreme Court today ruled in favour of people being scary dicks on the internet.
The Court overturned the conviction of a Pennsylvania man, Anthony Elonis, whose Facebook tirades about murdering his estranged wife, an FBI agent, and schoolchildren landed him in prison. Elonis published a disturbing series of Facebook posts after his wife left him. Nasty stuff, like this:
There’s one way to love you but a thousand ways to kill you I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.
Other posts referenced school shootings, with language violent enough to prompt FBI involvement. Elonis was charged and convicted of criminal threats for his torrent of digital vitriol, but he argued that his explicitly violent posts were not “true threats” — which aren’t protected by the First Amendment — but rather therapeutic lyrics that should be considered protected free speech. He also included disclaimers that the posts weren’t meant to be taken seriously.
SCOTUS sided with Elonis. Even though there’s no distinction in law between threats on the internet and threats in print, it’s the first time the Supreme Court has commented on the legality of language used on social media.
“Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state,” Chief Justice John Roberts wrote for the majority, explaining that the court overturned the case because the government never proved that Elonis had threatening intent. Justices Clarence Thomas and Samuel Alito dissented in the 7-2 vote.
This means no matter how abusive, misogynistic, violent, or otherwise reprehensible a Facebook rant is, the Supreme Court says it’s not criminal speech unless the author intended it as a threat and understood that others would take it as such. Elonis’ case is a bellwether for how courts treat internet speech.
That Elonis’ posts were bilious is obvious, but being a horrifyingly vulgar trashcan of a person isn’t a crime. That’s why maniac groups like the Westboro Baptist Church are legally allowed to yell slurs outside dead soldiers’ funerals.
And that’s why free speech activists argued vehemently against Elonis’ conviction. “Today’s decision properly recognises that the law has for centuries required the government to prove criminal intent before putting someone in jail,” ACLU legal director Steven R. Shapiro said in a statement. “That principle is especially important when a prosecution is based on a defendant’s words. The Internet does not change this long-standing rule. While today’s decision insists on fairness, it is not a licence to threaten, which remains illegal when properly proved.”
In that way, it seems simple: If someone posts a cruel jab or absurdly violent lyric, even if a “reasonable person” sees it and feels threatened, it shouldn’t legally be considered a threat because the author didn’t mean it as one. This line of thinking protects misinterpretations of controversial art, radical political opinions, and bad jokes. It protects the provocative from being hemmed in by the prudish. Yet the difference between provocation and straight-up dangerous speech is often uncomfortably blurry, and since the internet provides ample opportunities for trolling, the line between a tasteless joke and a genuinely terrifying threat is often so narrow that it’s entirely subjective.
This is not a clear-cut case. When Elonis was charged, it wasn’t because the federal government didn’t consider the context of his posts. It was because his claims that the posts were innocuous venting sessions didn’t cancel out the fear they produced. The Supreme Court decision weights Elonis’ intent as more important than the reactions he inspired. The First Amendment didn’t even factor into the decision, which hinged on whether Elonis’ intent could be proven as threatening in court.
In a dissenting opinion, Justice Alito described how confusing this ruling is, since there’s no map for how exactly a court is expected to augur the mental state of the defendant, besides simply taking them at their word for whether they were making a threat or totally just jokin’ around:
The Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.
Abusive language, harassment, and threats are a pervasive problem on social media. While the Elonis team argued that the threat of prosecution for publishing violent lyrics will have a chilling effect on free speech, there’s also an argument to be made that protecting abusive language will also have a chilling effect on free speech, by intimidating its targets into fearful silence. Allowing people who spew hate to determine whether that language is threatening tips the balance of power in the favour of online antagonists in a way that could make the internet an even more hostile place.
Illustration by Jim Cooke
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