The Supreme Court is preparing to weigh in on a landmark free speech case that raises crucial questions about the First Amendment in the age of the Internet.
The high court next week will sit down to decide whether or not police need to prove that people posting threats online actually intend to carry them out.
Free speech groups warned ahead of Monday morning’s arguments that a ruling in favor of the government “runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed.”
“As more and more speech moves onto the Internet, the constitutional protections afforded to online speech will increasingly determine the actual scope of First Amendment freedoms enjoyed by our society,” the American Civil Liberties Union, the Center for Democracy and Technology and other organizations warned in a friend-of-the-court brief.
The court needs to determine that intention matters, they added, “to ensure that protected online speech is neither punished nor chilled.”
The case centers on Anthony Elonis, who posted a number of violent, expletive-laden Facebook messages after he and his wife, Tara, separated.
In one, he asked if her court protection order was “thick enough to stop a bullet.” In another, he expressed regret for not smothering her with a pillow, dropping her off in a creek and making it "look like a rape and murder.”
After the split, Elonis was fired from his job at an Allentown, Pa., amusement park over a post that some of his coworkers took to be a threat against them.
He was sentenced to nearly four years in federal prison for the threats. But Elonis says that the rants are essentially harmless and were intended to be raps in the style of Eminem or the Odd Future rap collective.
One post urging his sister-in-law to dress up his children as “matricide” on Halloween, for example, was accompanied by an emoticon of a face sticking its tongue out, his lawyers noted, “which he understood to be an indication a post is meant in jest.”
The Constitution protects virtually all forms of speech, but has an exception for “true threats” such as a bomb threat or murder plot, which are punishable under the law. While the court has defined what counts as a true threat in many ways, there are still some lingering questions that could be increasingly important as more and more communications move onto the Internet.
Elonis and his lawyers claim that he should be judged not on what he says but on whether or not he actually intended to carry out the statements.
“Everyday usage” of the word “threat” “turns on the speaker’s intent,” his lawyers argued in a brief before the court.
Lower courts have been split on whether or not officials need to take someone’s intent into account when looking at their threats.
In its arguments, the government has said Elonis’s intent is largely irrelevant, since his wife, co-workers and others who were targeted by the threats were made to feel unsafe.
“Requiring proof of a subjective intent to threaten would undermine one of the central purposes of prohibiting threats,” the Obama administration argued in a brief presented to the court.
The outcome could have reaches much further than aspiring rappers on Facebook.
Domestic violence activists, for instance, have said that a ruling in favor of Elonis could open the floodgates to new forms of abuse on the Internet.
“Just as a cry of ‘fire’ in a crowded theater will cause the same panic whether the speaker intended only a prank or actually intended to cause fear, so too with threats of violence,” argued the National Network to End Domestic Violence and other groups.
The Reporters Committee for Freedom of the Press and other journalism organizations, meanwhile, have worried that the case could lead to a clampdown on journalists.
Political activist groups from People for Ethical Treatment of Animals (PETA) to Pro-Life Action League — an anti-abortion group — have also warned that the case “cuts to the core of the First Amendment and threatens one of the most basic freedoms enjoyed by American citizens: the right to protest.”
The ruling won’t just apply to speech on the Internet, though the possibilities offered by a seemingly endless number of places to post permanent messages online give the case special weight for the Internet age.
In the past, the Supreme Court has confronted the issue of threats on a couple of occasions.
In a 1969 case, the high court ruled in favor of a war protester who vowed to target then-President Lyndon Johnson “if they ever make me carry a rifle.”
More recently, the court upheld a Virginia law against cross burning in 2003, ruling 6-3 that the state can bar the practice “carried out with the intent to intimidate.”
That case stopped short, however, of making clear that every possible threat case needed to prove the actual intention to commit a threat.
Monday’s case is likely to be even tighter ruling, predicted University of Virginia law professor Robert O’Neil.
“The digital electronic environment has changed dramatically in that time,” he said.
“That’s why I’m sure the court will be much more sharply divided than it was 11 years ago.”
© Greg Nash