The U.S. Supreme Court ruled 7-2 on Monday to limit convictions for threats made on Facebook, a decision that avoided First Amendment issues but provides some clarity about when online communication can be considered a federal crime.
The decision favors Anthony Elonis, a Pennsylvania man sentenced to 44 months in prison for posting violent messages on Facebook about, among other people, his estranged wife. The justices determined that just because a victim views an online message as a threat, that doesn't necessarily mean that the perpetrator is guilty of threatening behavior.
Some of Elonis' posts read like rap lyrics: “There’s one way to love ya, but a thousand ways to kill ya ... hurry up and die bitch." His wife, who had recently left him, was fearful enough to obtain a protective order. But Elonis argued that his writings were harmless and "therapeutic," and that he was inspired by the rapper Eminem.
The justices had to decide whether Elonis's writings constituted "true threats," or communications that the issuer intends to be threatening, a category of speech that is not protected under the First Amendment. In 2003, for example, the high court found that the government must prove that a person burning a cross at a Ku Klux Klan rally meant the gesture as a threat. But this issue becomes dicier when examined through the lens of the Internet, where speech can reach audiences that the writer never intended and be taken out of context.
When the case was argued in December, the justices did not particularly focus on whether speech on Facebook is any different than other modes of communication. Rather, they examined how to determine the intent behind Elonis' writings. But the justices did recognize that social media presented unique challenges. Chief Justice John Roberts questioned, for example, whether the government's argument meant that different standards should apply depending on whether a teenager had a lot of Facebook friends or only a few.
First Amendment advocates, including media organizations, backed Elonis. In a brief, the Electronic Frontier Foundation and other groups wrote that "misunderstandings on social media are commonplace" and "speakers should not face prison time based solely on ... how a potentially unintended recipient would react to a message."
However, the justices declined to consider First Amendment issues in their opinion on Monday, instead holding that the standard used to convict Elonis was not sufficient. "Our holding makes clear that negligence is not sufficient to support a conviction," Roberts wrote. The ruling reverses the lower court's decision to convict. Justice Clarence Thomas dissented and Justice Samuel Alito Jr. dissented in part.
James Grimmelmann, a law professor at the University of Maryland, told The Huffington Post that the ruling makes clear that a person can't be convicted under these circumstances "just because somebody you don't know and didn't expect came along and saw your writings as a threat." He added that the the decision should head off some concerns from free speech advocates.
The decision arrives as social networks have come under fire for facilitating threats made against women and minorities. During "Gamergate," for example, women who spoke up about sexism in the video game community received death and rape threats online. In response to these kinds of complaints, social networks have attempted to beef up their anti-harassment policies, but problems continue.
On Monday, prior to the decision, Jamia Wilson, executive director of Women, Action & the Media, told HuffPost that "the cultural impact for this case is potentially groundbreaking." She added, "It's offensive that the infliction of pain on girls, gender non-conforming people and women ... is common, and considered entertaining and acceptable."
The National Network to End Domestic Violence said that it was disappointed by the ruling. "We expect that it will become more difficult to protect victims of abuse from threats," the group said in a statement Monday.
In a brief, NNEDV had argued that requiring proof of a subjective intent in this case would "make it more difficult to protect victims of abuse" and noted that such threats cause "crippling fear and disruption" even after victims escape their abusers.
Alito referenced this point in his opinion, writing that "there was evidence that Elonis made sure his wife saw his posts." He added, "A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech."
This story has been updated to include comment from the National Network to End Domestic Violence