In 2010, a Pennsylvanian man named Anthony Elonis made an ill-advised move: He threatened to kill his estranged wife in a Facebook post. Elonis was sentenced to four years in prison, of which he served more than three years before release, and eventually appealed his case to the Supreme Court.
Today, the Supreme Court is scheduled to hear arguments* on whether violent social media posts have first amendment protection. The ruling will have wide consequences for Facebook, YouTube, newspaper websites, web forums, and any other forums people take to in order to express anger online. Depending on how the Court rules, your vitriolic YouTube comment could now be illegal.
In court, Elonis was convicted under federal laws that prohibit “any threat to injure the person of another.” Under the name “Tone Dougie,” a combination of his first and middle names, Elonis posted a series of messages to Facebook that referenced killing his wife and attacking local schools. Elonis argues his posts were the products of an aspiring rap career; the actual content of the post themselves were takeoffs on Eminem songs and comedy sketches by The Whitest Kids U’ Know.
The post at the core of the Supreme Court case is one Elonis made about a week after Elonis’ wife, Tara Elonis, filed for a protective order against Anthony:
Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
A PFA is a “Protection From Abuse” order, commonly issued in domestic violence cases. Another post from Elonis reads:
If I only knew then what I know now.. I would have smothered you’re ass 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.
These Facebook posts landed Elonis in prison. His brief claims, for his part, that the posts were “therapeutic efforts to address traumatic events.”
The gray area that the Supreme Court is trying to clarify is the question of whether threats made on Facebook, YouTube, and other forums count as protected speech. While Elonis’s posts are undoubtedly disturbing, the question is if they count as free speech under the law.
There are a variety of non-linguistic cues to figure out, in real life, the intent of a threatening comment, but it’s much harder online. There are no facial expressions to read, no tone of voice to interpret, and, in the case of a Facebook post, little or no context for the statements.
The big precedent in Elonis’s case was 1969’s Watts v. United States, where a draft protester was accused of threatening then-President Lyndon Johnson. Because the unarmed protester said “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” with a smile to a laughing audience at a peaceful political rally, the Court ruled it was not a threat. The question here is whether a similar set of is-the-speaker-serious-or-not criteria exists for the digital world.
Elonis’s allies in this case include the Student Press Law Center, the Electronic Frontier Foundation, and writers’ organization PEN. In a written brief, they stated that people “may give vent to emotions on which they have no intention of acting […] The uninhibited interaction, discussion, and personal revelations facilitated so powerfully by social media also implicates speech that may be unsavory or even distressing to some recipients, but this is precisely the type of speech the First Amendment is designed to protect.”
Social media is full of content that makes threats against specific individuals or organizations. It’s part of the sometimes ugly nature of the Internet. But at the same time, Internet censorship can have unintended consequences. The Supreme Court isn’t made up of techies; it’s extremely unlikely that Antonin Scalia has ever spent a few minutes on his lunch break posting to Secret or that Sonia Sotomayor keeps a Supreme Court cafeteria Tumblr. But their ruling will affect how users of both platforms–and users of hundreds of other digital services–can express themselves online.
It’s easy to find the worst expressions of hate in Internet comments. YouTube’s comment threads are infamously ugly, and comment threads on gun control, abortion, Israel-Palestine, and other topics frequently degenerate into threats against individuals or groups. Depending on how the Supreme Court opts to handle this case, the worst of those threats might now become illegal, and a precedent could be created for criminalizing more and different types of Internet speech in the future.
In the meantime, if you have to be the kind of person that threatens people on Facebook, please use those sticker emoji to indicate whether you’re joking.
*Correction: A previous version of this article incorrectly stated that the Supreme Court was scheduled to issue a ruling today.