If there’s one thing the Supreme Court hates doing, it’s limiting free speech. But on Tuesday the justices indicated they might do just that when it comes to threats of violence posted online.
None of the justices expressed sympathy for the defendant in Elonis v. United States, Anthony Elonis, who in 2010 was convicted of violating a federal law by threatening his estranged wife in a series of disturbing posts fantasizing about harming her on his public Facebook page. He was sentenced to nearly four years in prison.
Elonis claims he didn’t intend to threaten anyone, and that his writings were therapeutic and inspired by rap music. But the justices weren’t buying it.
“This sounds like a roadmap for threatening a spouse and getting away with it,” Justice Samuel Alito told the lawyer defending Elonis when he argued that the posts were a misunderstanding between Elonic and his wife, Tara Elonis.
Justice Antonin Scalia said “physical threats” are not common in marital disputes. “I think that’s rather unusual, even in the heat of anger,” he said.
At issue is whether federal law and the First Amendment require that a person intended to threaten someone in order to be convicted, or merely that the language in context would be read by a reasonable person as a “true threat.” Elonis says there must be intent to injure while the Obama administration wants the “true threat” standard. Lower courts sided with the government, but the Supreme Court has never addressed this question.
In one comment responding to a Facebook post by Tara’s sister, Elonis suggested a Halloween costume of Tara’s “head on a stick.” His own Facebook postings included this one: “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.”
The justices were largely preoccupied with the unintended consequences of circumscribing free speech, quizzing Deputy Solicitor General Michael Dreeben with a variety of hypotheticals about whether the government’s standard could end up implicating an innocent person.
“The First Amendment requires a kind of buffer zone … because we don’t want to chill innocent behavior,” Justice Elena Kagan said.
Chief Justice John Roberts wondered if similarly hostile language expressed by Eminem at a concert would implicate him, to which Dreeben said it would not because a reasonable person would recognize that to be entertainment for an audience. Dreeben said the government’s interpretation of the law does not violate a person’s “freedom to engage in rap artistry.”
When Justice Stephen Breyer dove into a lengthy hypothetical scenario, as he often does, it appeared to bore Alito, who rocked back and forth in his chair and gazed at the ceiling.
In one of the lighter moments of the hearing, Roberts pondered how a defeat for Elonis would affect perceivably threatening speech from “a reasonable teenager on the Internet,” to which Dreeben responded, “If there is such a thing.”
Justice Sonia Sotomayor summed up the Supreme Court’s dilemma in the final moments of the arguments, saying, “We’ve been loath to create more exceptions to the First Amendment.”
The internet didn’t exist when the 1st Amendment was written. Technology is, indeed, re-writing the rules that we, as a society, live by. In the digital age, absolutely nothing is personal or private. Anyone can gain access to anyon else’s personal information, and post that info on the internet for the entire world to see. I admire much of the work of Anonymous, but i fear that they will eventually go too far, and cause a reaction to their work that results in a draconian reversal of the rights and liberties we all now take for granted. Personally, none of us can become anonymous. Our gas and electric bills are tracked electronically. Ditto for our cell phones, our internet connections, our government tax liabilities, our cable TV subscriptions…this list goes on and on and on. Our existence, and all of our financial transactions and communications cannot be deleted. The only way to drop out of society is to literally get up and move away from civilization, in which case you’d immediately become a “person of interest” because you are not allowed to disappear from corporate or the governments crosshairs. Also personally, i don’t do Facebook. The use of such social media devices is TMI. The world survived and functioned quite all right before Facebook ever came into existance. Ditto Twitter. And Flikr, and every other instant messaging app that someone invented, for what reason exactly??
Good luck to the Supremes in figuring out how the 1st Amendment applies in the digital age.
If Elonis were standing on the sidewalk outside his estranged wife’s residence screaming these things, would the Constitutional dilemma be any different? He could/would be arrested for “disturbing the peace”, of course; and a restraining order be sought/ ordinarily granted limiting his physical distance from her. Could a restraining order to limit the cyber-space distance from her of his “stalking speech” threats be likewise Constitutional? It would be a step below being arrested.
I share Justices Kagan’s and Sotomayor’s concerns for protecting the First Amendment, but I also acknowledge the vile and widespread cyber-bullying that now goes on, which is particularly harmful to children. The possibilitys for such cyber-bullying will only increase as social media outlets grow more sophisticated and pervasive. Truly a conundrum for SCOTUS and society.
I don’t see how the internet relates to this. Threats have never been protected as free speech. I don’t see how this is different than saying the same things in some pre-internet medium.
Does somebody have to pay for access? asks Scalia. Nope, replies Roberts. Well, then shut it down, says Scalia. If you don’t lay out any money, than it ain’t Free Speech!
It applies through the presumption of anonymity. That sometimes is a false presumption, but if the stalker making threats assumes he will not get caught, that is a tremendous enabler to make his threats.