The US Supreme Court is to decide whether violent threats or images posted on Facebook and other social networks constitute free speech or a criminal act, in the case of a man who made comments about his estranged wife.
Anthony Elonis wrote about killing his wife publicly on Facebook and also posted other comments and images about her, about his co-workers and about the law enforcement officials who investigated the threats.
“There's one way to love you but a thousand ways to kill you," he wrote about his wife. "I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."
Elonis’ boss saw the posts and reported them to the authorities. After FBI agents visited him at home, he wrote about slitting the throat of a “little agent lady”.
Elonis claims that the posts were just artistic expressions and his way of dealing with his personal problems, not indications that he wanted to harm anyone. But both the lower court and the appeals court ruled that the posts were criminal threats, because even if he didn’t intend to hurt anyone, a reasonable person would have felt threatened by them.
“Although the language was — as with popular rap songs addressing the same themes — sometimes violent, petitioner posted explicit disclaimers in his profile explaining that his posts were ‘fictitious lyrics,’ and he was ‘only exercising [his] constitutional right to freedom of speech’,” his filing to the Supreme Court said.
He was sentenced to nearly four years in prison for posting the ominous photos and violent rants on Facebook.
Elonis and his legal team have pushed the case all the way to the Supreme Court, with free speech advocacy group the Thomas Jefferson Centre for the Protection of Free Expression also supporting his attempt to have the court consider the issue.
The group said in a filing to the Supreme Court that the case would allow the courts to “address for the first time whether the nature of the medium through which speech is conveyed affects a true threat analysis”.
It added that the proliferation of social networks and other forms of online commentary was making the application of the First Amendment right to free speech murky and the courts needed to start clearing up the uncertainty.
“True threats” to harm another person are not protected by the First Amendment, but the internet presents new problems in figuring out just what a “true threat” is.
The Supreme Court said that it would consider whether “conviction of threatening another person… requires proof of the defendant’s subjective intent to threaten”.
The case is due to be heard in the autumn. ®