10/15/2014 02:41 pm ET Updated Dec 15, 2014

Facebook vs. the Supreme Court


The Supreme Court reconvened this month for a new term with the list of pending cases it will be tackling. On the list is a free speech case to determine what constitutes a threat on Facebook. Yes, Facebook. Somehow threatening to kill, rape or maim someone is different on a public forum than it would be in person and this particular case is important enough to go all the way to country's highest court for consideration.

The case the Supremes are hearing is in regards to Anthony Elonis, who was convicted of making threats against his estranged wife and an FBI agent. His posts said things like, "I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." He later suggested that he might make "a name" for himself with a school shooting. "Hell hath no fury like a crazy man in a kindergarten class. The only question is ... which one?" At that point, a female FBI agent paid him a visit, which then led to a post in which he said that he'd had to control himself not to "slit her throat, leave her bleeding from her jugular in the arms of her partner."

According to NPR:

At Elonis' trial, the judge instructed the jurors that to convict, they had to conclude that this was not merely exaggeration. His Facebook posts needed to be statements that a reasonable person would interpret as a serious expression of an intention to inflict bodily injury. Elonis contended that he was just mimicking rap songs--indeed, he often linked to songs with his post. He argued that he should not be convicted without actual proof that he intended to threaten, intimidate or harm.

I've been on Facebook for a while now and have been involved in some fairly contentious discussions. I've been out there with my opinions since the financial collapse and through a couple of elections. As a rule, posting anything more than a video of adorable kittens doing adorable things is an open invitation to anyone with an opinion -- informed or otherwise -- to lash out with comments that generally wouldn't be suitable if shouted on the street or in a mall -- and might even lead to an arrest.

I'm an American born in France. I blog on The Huffington Post. I have advocated for consumer rights and affordable health care. That has led, at various times, to me being called a socialist, communist, Nazi sympathizer, fascist and, presumably because I have a full head of hair and all of my teeth, a homosexual. For a straight guy I've been the target of some surprisingly angry, hateful and wildly creative homophobic epithets. I've also had my life threatened by people claiming to have tracked down my address and "know where I live."

Generally, I'll unfriend these people and move on. Other times I'll block them, which presumably does nothing more than block me from seeing them, but doesn't always work in reverse. It feels a little like walking away from someone lying about you to a room full of people without defending yourself. On a couple of occasions, when things got really weird and a little scary, I've reported the person to Facebook. These incidents usually involved death threats, racial slurs, homophobic rants and have caused me more than a little bit of concern. I have other friends who are equally active in political and social issues who have experienced similar threats. We're not thin-skinned and have learned to take everything in stride and understand that tempers can get the best of people particularly when you're carrying on a conversation online as opposed to face-to-face. So, the actual act of reporting someone for what they're saying is not done in a thoughtless or cavalier manner. It's a deliberate and deliberated act that was discussed, thought out, carefully considered and executed because we felt threatened and had determined that the situation and the threat was serious enough to let someone know.

The big question staring Facebook and the Supreme Court in the face is: Can Facebook be trusted to monitor and protect its users? Do laws that apply to normal civilized society apply to what is essentially on an online forum? Albeit a very large online forum that has permeated nearly everyone's life.

Here was the boilerplate response received to open threats of violence and comments like, "I am cleaning weapons and beyond ready to extinguish you."

This response is far too common and has been Facebook's standard response to complaints. Threats of rape, murder, beatings, lynching? No problem. Facebook doesn't see that as violating their community standards.

How about threatening to kill the president of the United States? Would that violate Facebook's community standards? Apparently not.

As Jim Wright, a retired Navy Captain at AATTP, writes about a Facebook page started by Everest Wilhelmsen, the leader of Christian American Patriots Militia, who said, "that he and his group of delusional Teabagging cretins have a 'Second Amendment Authority' to murder President Obama. Wilhelmsen, in a November 19 Facebook posting, claimed that if President Obama did not willingly leave Washington D.C. he would be 'dead within a month.'"

The page, according to Wilhelmsen, raised over $80,000 to assassinate the president.

Wright continues:

Here in America we can publicly declare war on our own nation, engage in open sedition and treason writ large, offer a reward for the capture and execution of our own democratically elected president, publicly promote the overthrow of the very Constitution which guarantees our freedoms, and loudly declare our intention for violent installation of a religious theocracy made of up of extremists who would execute and imprison any American who does not subscribe to this murderous lunacy.

Numerous people complained to Facebook about the page and received the same pat response. That's right, it doesn't violate their community standards. Using Facebook to openly crowdfund the assassination of a sitting president is just fine by Facebook's standards.

Facebook is a petri dish of discourse that reflects our society as a whole and allows people to blurt out unfiltered rants and not be hindered by the consequences of their remarks. Particularly if Facebook is allowing whoever to say whatever they want without so much as a time out or suspension. What are the chances that this kind of unfettered behavior will be allowed to seep into our daily lives as people find out that there are, in fact, no consequences to what one says?

Part of the issue and possibly the problem is that, thanks to social media (Facebook, Twitter) and texting, we have become oddly non-confrontational as a society. We've removed a level of empathy and compassion that only exists when we're in touch with each other -- the stuff that makes us uncomfortable and human. We'd sooner shoot of an angry email to a coworker than walk down the hall to discuss a problem, repost an article we haven't fully read and call that activism and break up with or fire someone via text message in the name of efficiency. We've become disconnected with people and tend to live a disjointed version of reality created by our imagination and rarely benefit from the reaction or the rebuttal from the unsuspecting recipient of our emotionally charged outburst that we might otherwise be aware of face-to-face or even on the phone.

Comedian Louis C.K. illustrates and explained this brilliantly during a segment on Conan:

"... they don't look at people when they talk to them and they don't build the empathy. You know, kids are mean because they're trying out. They look at a kid and they go, 'You're fat,' and then they see the kid's face scrunch up and they go, 'Oh, that doesn't feel good." But when they write 'you're fat,' they go, 'Mmmm, that was fun. I like that.'"

Watch the full (five-minute) video below:

Another issue facing the court, and ultimately the rest of us, depending on their decision, is that this is a technophobic court. According to an article by Business Insider the justices are not technically savvy.

The average age of the Supreme Court's nine justices is just over 68. Justice Elena Kagan, 54, is the youngest on the court. Four of her colleagues are over 70 and several have served on the court since cell phones had to be carried in backpacks. While age doesn't necessarily imply that someone isn't familiar with technology I think it's safe to speculate that the Justices aren't hanging out on Facebook posting selfies, liking pictures of Obama with a Hitler mustache or sharing articles with headlines that defy all logic. Whether that's a good thing remains to be seen and will be reflected in the language of their ruling and how it will ultimately affect the First Amendment in cyberspace and its application by the rest of us on a daily basis.

If they were on Facebook, or Twitter for that matter, they'd probably be subject to the same racial slurs, homophobic remarks and threats that the rest of us have to endure. They'd get that same pit in their gut and sense of disgust we do when our crazy uncle or random idiot we don't really know posts or says something vile. The fact of the matter, as evidenced by the Obama bounty above, is that when people are able to hide behind seemingly anonymous screen names and not have to look the other person in the eye, they say whatever they want with very little regard to how it affects the other person.

Business Insider continues:

Court experts said justices take tech issues seriously, even if they make the occasional slip during oral arguments. The justices read "friend of the court" briefs from experts in the field, and some had experience in the realm of science and technology before joining the bench. Justice Stephen Breyer worked on regulations as a US Senate staffer and wrote widely on issues related to technology and the law. If all else fails, they can turn to their twentysomething law clerks.

Let's hope that whomever has their ear isn't the perpetrator and that, unlike the current justices, has some real world experience with being harassed and threatened online. I'm not holding my breath.