Anyone who has ever perused an online comments thread has undoubtedly encountered coarse, corrosive discourse. Everything from discussions of video games such as Super Smash Bros. to the proper way to perform a back squat presents the opportunity for commenters to engage in ad hominem attacks against one another, attacks that can all too frequently devolve into vicious insults and promises of future harm. Publications such as The New York Times now employ full-time moderators to screen out vituperative, disturbing or irrelevant comments. In certain alarming cases, online threats might persist throughout months of cyberstalking, a type of incivility (and borderline criminality) often directed at women.
Law enforcement agencies face tremendous challenges when assessing these threats. Closer online scrutiny of threatening or hostile communications might have forestalled tragedies such as Elliot Rodger’s recent shooting spree in Isla Vista, California. At the same time, individuals posting disturbing messages might simply be seeking to amuse their friends or express their creative impulses. When it comes to prosecuting “true threats” that are likely to be followed by actual violence, courts across the United States have reached different conclusions: Some have held that the speaker’s subjective intent to threaten should determine the outcome of the case, while others have concluded that such threats should be analyzed from the perspective of whether a reasonable person would feel threatened by the communication. A single bright-line rule that is applicable across all jurisdictions — and suitable for the online context — has thus far been lacking and is much needed.
During its October term, the Supreme Court will be forced to clarify this issue when it hears arguments in Elonis v. United States. The case concerns a particularly appalling example of cyber-stalking: In 2010, Anthony Elonis, a supervisor at a Pennsylvania amusement park, used his pseudonymous but publicly accessible Facebook page to post a series of threatening messages directed at his ex-wife, federal authorities and even students at a local elementary school (PDF). After learning of Elonis’ posts, federal authorities arrested him and charged him with violating a federal statute that prohibits the making of threats that are transmitted “in interstate or foreign commerce.”
A federal jury convicted Elonis, after which he appealed his case to the 3rd Circuit, arguing that his subjective intent needed to be considered when determining whether he had communicated a threat. He had included in his posts links to Eminem rap lyrics and a “The Whitest Kids U’ Know” sketch, which he claimed had allegedly inspired his writings and also indicated that he was merely engaged in creative activity with no actual intention of harming his wife. This argument failed to resonate with the judges considering the case. In a measured decision by Anthony Scirica, the court concluded that Elonis’ statements should instead be examined “in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted” as communicating a threat.
It is unclear whether the Supreme Court will accept the 3rd Circuit’s reasoning, though to bring clarity to the issue, it should. In their briefs to the court, both Elonis’ attorneys and the federal government rely heavily on a 2003 First Amendment decision regarding a Virginia statute that prohibited cross burning. The Supreme Court held that the statute was unconstitutional because it placed a prima facie — i.e., assumed correct until disproved — presumption of guilt on the defendant. Instead the court required that the state actually prove that the individual burning the cross had intended to intimidate his victim. However, the question of whether statutes such as the one at issue in Elonis — which did not create such a presumption of guilt but merely proscribed the making of threats in interstate commerce — were subject to a subjective intent or a reasonable person standard went unanswered.
Constitutional questions involving recent technology, by which I mean technology developed during the past three decades, are not exactly the Supreme Court’s specialty. Justice Elena Kagan, the court’s youngest member, at 54, has admitted that “the justices are not necessarily the most technologically sophisticated people” and that social media services such as Facebook and Twitter are “a challenge for us.” The federal government, arguing in support of the 3rd Circuit’s decision, has hardly helped matters by producing a workmanlike, mediocre brief (PDF) that says almost nothing about the online context in which Elonis’ threatening remarks were made. (And solicitor general Donald Verilli’s lackluster performance in the Affordable Care Act cases hardly inspires confidence.)
On the other hand, Elonis’ attorneys, assisted in their appeal by University of Virginia Law School professor and appellate litigator Daniel Ortiz, have done a much better job (PDF) of explaining how Facebook works and why a subjective intent standard should govern online communications. Elonis’ lawyers will be looking to sell their explanation to swing justices such as Clarence Thomas — who has long been idiosyncratic when it comes to free speech rights.
But a victory for Elonis would be a failed opportunity not only to rein in Internet incivility (what his attorneys would argue his posts demonstrated), but also to overturn the mistaken belief that imagined electronic distance somehow makes deplorable and even dangerous communications more acceptable in that format than in any other. Imagine if Elonis — whose Facebook profile, though pseudonymous (he went by the handle “Tone El,” a play on his name), was public and followed by his friends — paraded around on the sidewalk shouting such statements as “hell hath no fury like a crazy man in a kindergarten class” and “I’m checking out … enough elementary schools in a 10 mile radius to initiate the most heinous school shooting ever imagined.” Historically speaking, the First Amendment was never intended as an absolute bar to government prosecution for one’s speech, and, contrary to a popular but misguided belief, does not bar an individual from having to face the consequences of his or her speech.
In support of Elonis, the Thomas Jefferson Center for the Protection of Free Expression (PDF) argues that the case “presents an ideal opportunity for this court to determine whether its ‘true threats’ doctrine is compatible with contemporary modes of communication.” While I agree with this point, I disagree that a “subjective intent” standard offers adequate protection to the victims of severe online harassment and cyberstalking. Given the difficulty of ascertaining a person’s intentions, a standard of this sort could prove a shield for genuinely threatening speech, much of which could be justified after the fact as artistic expression or creative license. To decrease the danger posed by individuals who believe that the Internet offers them a safe haven for conveying threatening messages they would be reluctant to make in person, the court ought to clarify its First Amendment doctrine by adopting the reasonable person standard for assessing true threats that was advanced by the 3rd Circuit.
During a 2010 “Good Morning America” interview about the appointment of Kagan and future challenges facing the Supreme Court, Justice Stephen Breyer suggested that free speech standards might need to be re-evaluated, given that the crowded theater in which it once would have been illegal to shout “fire” now encompasses the whole world. Breyer is right: In a society in which technological advances have reduced the distances between individuals to zero, we must recognize that our online communications, far from being shouted into an electronic abyss or vacuum, have the ability not merely to offend but to threaten and terrorize others.