By Jess Bravin
WASHINGTON--A case before the Supreme Court over threats made on
Facebook is highlighting long-standing tension between law
enforcement and free-speech advocates over when threatening speech
crosses a line and breaks the law.
The appeal, up for arguments on Dec. 1, presents a vexing legal
issue courts have long struggled to settle, and it does so when
what people say can reach a bigger audience than ever before
through social media. Although social-media companies have rules
for managing individual speech online, the outcome could affect the
leeway people have to express themselves, even darkly and
violently, on Facebook, Twitter, YouTube and other sites.
Prosecutors have brought a string of cases alleging that serious
threats posted on social media deserve jail time. Lower courts have
split over whether the government must prove a person actually
intended to threaten someone--or merely that a "reasonable person"
would perceive that he or she did so in their online post.
Free-speech advocates argue the Constitution gives people wide
latitude for expression, and that a ruling allowing the "reasonable
person" standard would chill legitimate speech on social media and
elsewhere.
John Elwood, the Washington attorney who will argue on behalf of
Anthony Elonis, a Bethlehem, Pa., man who was convicted of
threatening his estranged wife in a series of Facebook posts, said
his client's posts can be likened to songs such as "Kim" and "Kill
You" from Eminem's Grammy-winning "The Marshall Mathers LP," where
the artist sings about killing his then-wife and mother.
Mr. Elwood said Mr. Elonis was only venting frustration after a
run of personal setbacks, including the collapse of his marriage
and the loss of his job at the Dorney Park and Wildwater Kingdom
amusement park in Allentown, Pa. If Eminem "were still playing
250-seat gyms, it would be hard to distinguish him from the
heartbroken amusement-park worker here, who also had an audience of
about 250 people," he said.
The Justice Department declined to comment, but in a legal brief
it said that fears of limiting legitimate speech are overblown.
"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. If prosecutors should overstep,
"juries are fully capable of distinguishing between metaphorical
expression of strong emotions and statements that have the clear
sinister meaning of a threat," the court brief said.
Following separation from his wife, Mr. Elonis began posting
violent statements on Facebook, the first announcing "sinister
plans for all my friends." His wife became a particular target. "If
I only knew then what I know now, I would have smothered [you] with
a pillow, dumped your body in the back seat, dropped you off in
Toad Creek, and made it look like a rape and murder," said one
post.
Mr. Elonis served just over three years in federal prison after
being convicted of posting threats.
Federal law shields online companies from liability for
statements posted by users, a restriction that has given
social-media companies room to let people speak relatively
freely.
Facebook isn't named in the case but is following it. A
spokeswoman for the Menlo Park, Calif.-based social network
declined to comment on the particular case or the issue of
threatening posts generally.
However, in its published "community standards," Facebook says
that "we remove content and may escalate to law enforcement when we
perceive a genuine risk of physical harm or a direct threat to
public safety. You may not credibly threaten others, or organize
acts of real-world violence." The policy adds "that something could
be disagreeable or disturbing to you without meeting the criteria
for being removed or blocked," and for that reason the website
provides users "the ability to hide or quietly cut ties with
people, pages or applications that offend you."
The Reporters Committee for Freedom of the Press and several
other media organizations said in a court brief that the Supreme
Court should continue to give disagreeable expression broad First
Amendment protection. "Public commentary is frequently meant to
provoke--whether by urging listeners to rethink their position on
an issue or to take action--and this country has a long history of
protecting provocative speech," the brief said.
In 1969, for instance, the Supreme Court threw out the threat
conviction of a draft resister who proclaimed, "if they ever make
me carry a rifle, the first man I want to get in my sights is LBJ,"
at a 1966 antiwar rally. The court said the speech was clearly
"political hyperbole," perhaps "vituperative, abusive and inexact"
but nonetheless constitutionally protected.
The digital era has upended traditional expectations, however,
making it far easier to disseminate communications while often
stripping them of the context that could make their significance
clearer.
"What's potentially new about social media is the possibility
that speech will slip from one context to another," says James
Grimmelmann, a University of Maryland law professor.
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