Supreme Court To Examine The Dividing Line Between Threats And Speech

from the so,-maybe-hold-off-on-the-Facebook-rap-battle-for-now dept

The Supreme Court has decided to take up a case dealing with the idea of the theoretic “reasonable person” and how this supposedly objective standard holds up when dealing with alleged threats. This case features a very unsympathetic appellant — one who has a history of making unpleasant comments online.

Pennsylvania man Anthony Elonis has historically enjoyed saying outrageous things on Facebook, such as how he would like to murder his estranged wife; shoot up an elementary school; sneak into an amusement park he was fired from to wreak havoc; slit the throats of a female co-worker and a female FBI agent; and use explosives on the state police, the sheriff’s department, and any SWAT team that might come to his house. Elonis has never actually done any of these things, but he did spend the last three and a half years in prison for saying that he would. This week, the Supreme Court said it’s going to re-examine the case, meaning we’ll get a federal decision on whether threats made online need to be made seriously to send the threat-maker to jail, or just need to be taken seriously by a reasonable person threatened.

Elonis’ argument is that his threats were just “rap lyrics” intended to be read by only his friends. He also argues he never targeted anyone (ex-wife, schools, FBI) with these comments (specifically pointing to the fact that he never “tagged” any of his “targets” using Facebook’s notification system) and that the supposed threats were taken out of context — that context being that Elonis was known for posting outrageous comments.

The lesson here seems to be that seeking negative attention from the internet also tends to net you additional attention from law enforcement, especially if your background isn’t exactly clean. Elonis apparently harassed coworkers to the point of being fired from an amusement park job and some Facebook comments fantasizing/threatening violence towards his ex-wife prompted a real-life restraining order.

One of the problems with Elonis’ case is that it asks the Court to find in favor of a very unsympathetic individual. It also asks it to ignore the objective standard so many courts have used and begin applying a subjective standard — something more aligned with the reality of internet communication. There are other cases out there with more sympathetic protagonists, like Justin Carter, a teen who was arrested and thrown in jail (and held with a $500,000 bail) over some post-video game trash talking that included a mention of shooting up a school. To make the case against Carter, the comment was stripped of its context and presented as the teen’s sincere desire to kill schoolchildren.

Social media interactions, when robbed of context, can often appear to be much more dangerous than they actually are. Simply holding that the reasonable person would view one specific comment or post as threatening hurts not only seemingly more “dangerous” people like Elonis, but also those who never truly uttered a threat (like Justin Carter). Since we can’t expect the theoretical “reasonable person” to have access to the surrounding context, we expect the court to consider this along with the reasonable person’s point of view.

It has long been known that people are more willing to say divisive and controversial things on the internet — stuff they certainly wouldn’t say in person. To hold these interactions to a “reasonable person” standard ignores the fact that the internet isn’t particularly known for “reasonable” interactions. There’s likely no “bright line” to be found here. Not everything threatening said online should be treated as a threat, but on the other hand, the tendency of internet interactions to be more exaggerated than those in real life shouldn’t be used as a shield against criminal charges.

Hanni Fakhoury, a lawyer for the Electronic Freedom Foundation, makes a very good point — one that could head off a lot of high-level court discussions over the “reasonable person” viewpoint.

Fakhoury says threats made online should be where police investigations start, not where prosecutions start.

“We’ve tolerated stupid speech a long time in this country, and we shouldn’t let the Internet shake that balance,” says Fakhoury. “We need a holistic approach to problems, not just, ‘If you say a threat on the Internet, you’re going to jail.'”

As we’ve often stated here, supposed threats should very definitely be investigated. But these investigations not only need to take into account whether the person has the means to carry them out, but also the surrounding context. It’s simply not enough to declare something a threat because someone felt threatened — a word some people deploy when they actually mean “appalled” or “offended.” But that’s often how these prosecutions start — a very subjective situation which is only held to a supposedly objective viewpoint long after someone’s already been jailed and gone to trial.

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Comments on “Supreme Court To Examine The Dividing Line Between Threats And Speech”

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Anonymous Coward says:

Usually no reasonable person would udder such threats. There are some moral mores that just shouldn’t be crossed. Rap never did appeal to me. Maybe it’s the culture, maybe it’s the threats imbedded in them, both implied as well as plainly stated. I understand that one man’s trash is another’s treasure when it comes to music.

On the whole the stirred up fear of manics on the loose in public wielding guns and shooting totally unknown strangers to them is in part responsible for the idiocy that has descended on us of zero tolerance. Zero tolerance has been taken to the extremes to the point that common sense no longer functions in law enforcement nor in public schools when it comes to threats. All that’s needed is an opportunity to become the hammer over.

It is aided and abetted by agencies such as the FBI quite willing to set up the circumstances, the fake explosives, and even plan it out, provided they have a patsy with no other discernible means to deliver on such a threat with out the aid, support, and encouragement of an agency willing to entrap.

This business is reflective of the whole attitude displayed by authority figures. Heck you can’t even see your congress critter without someone in the background worrying about you being Joe Public with a grudge.

Anonymous Coward says:

Re: Re:

Maybe rap never appealed to you because you’re only aware of the ‘gangsta rap’ sub-genre of ‘rap’ or as some might call it, ‘hip-hop.’

There’s a huge difference between

When I’m called off, I got a sawed off / Squeeze the trigger, and bodies are hauled off
(For the sake of argument, let’s assume NWA weren’t being ironic)


I’ll stir fry you in my wok


Just start to chase your dreams / Up out your seats, make your body sway / Socialize, get down, let your soul lead the way

What I’m saying is, I pity anyone who lives in fear of being stir-fried.

zip says:

it all depends on who you are and who you know

It all depends on who you are and who your friends are. When religious cult leader Bob Jones Jr. famously asked his followers to pray to God that He would “smite” (i.e., slay) US Secretary of State Alexander Haig — law enforcement took no notice.

(source: )

Yet when ultra-radical radio ranter (and paid FBI informant) Hal Turner once opined that a judge “deserved to die” — the law went after him with a vengeance and sent him to prison.


vancedecker (profile) says:

Re: it all depends on who you are and who you know

hmmm… you’re first sentence isn’t a threat, but I get your point.

This is strange though:
“Turner, 48, a former snitch for the FBI and U.S. Marshals Service, claimed his government handlers at the time had urged him to make provocative statements and advocate for violent resistence to smoke out domestic terrorists.”

He actually testified that he had government “handlers” urging him to do this?

I kind of want to know more about that.

Anonymous Coward says:

but if I write it as...

if I label my facebook page as a book based on a fantasy characters facebook postings as he lives his life…
is it all just literary and I can then write anything I want, while if I write the same things as ‘myself’ then the writing would be illegal?

it’s not a real threat if Meeso Manly (the main character) threatens to set off a potion of magical mass destruction in Districtus Columbinus (a city-state ruled by Joffrey Hussein Smith) and make a getaway to the land of Sombreros (like elves but different) on a magical dragon?

stupid fiction? yes.
illegal? I have no idea.

was ICP investigated for their song “I Stab people”?
I mean.. wow.

Roland says:

terrorism's little brother

@zip: IMHO no reasonable person would expect “God” to respond to such prayers.

This is all about intent. IMHO Oregon law gets it right:
ORS 163.190 Menacing. (1) A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.

vancedecker (profile) says:

More idiocy from TechDirt Loons.

“As we’ve often stated here, supposed threats should very definitely be investigated. “

Why? Because you want to sound reasonable? You are just playing into every hysterical bitch who has ever been ‘concerned’ and called the police.

Your next sentences:

“…But these investigations not only need to take into account whether the person has the means to carry them out, but also the surrounding context. It’s simply not enough to declare something a threat because someone felt threatened”

Doen’t change anything.

You’re just proving you don’t even understand what is going on. There can never be an ‘investigation’ without a presumption of guilt. There is no need for these ‘investigations’ to begin with.

Nobody should have to justify to anyone else threatening a stupid hysterical woman online or verbally. That’s free speech.

Now, that ends when you start stalking and harassing the same person, across multiple sites and/or the real world. THERE IS A BIG DIFFERENCE between “threatening” a dumb ass in passing and stalking.

You need to stop PANDERING to the lowest common denominator in society.

Anonymous Coward says:

Spoken word vs written word

What bothers me most about this is that it feels like the spoken word is treated differently here than the written word.

Suppose you threaten your estranged wife the old school way by yelling at her in front of witnesses. Suppose anybody will call the police. What will happen? Most likely a police officer will visit you and give you a stern warning. Also possible is that the police willl just blow it off and say that as long as you’re not hurting her or actually killing her there is nothing they can do.

Write it on the internet: you go to jail, even if the statements are objectively ridiculous when seen in context.

Seems to me it’s just lazy policing: If we have a written record, let’s polish up our conviction rates. If it involves actual police work like interrogating witnesses and lengthy court cases? Perhaps we have other stuff to do.

Anonymous Coward says:

Speaking of context

Isn’t the US a free Country? Innocent until proven guilty?

So how come this sentence makes sense?
“…after someone’s already been jailed and gone to trial.”

Shouldn’t it be “…after someone’s already been tried and gone to jail.”

“Yes, you are presumed innocent, but we are going to keep you in jail until we determine that we cannot convict you of the crime we allege you committed.”

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