The intersection of Facebook use and Free Speech is complicated. Complicated enough, in fact, that the U.S. Supreme Court will weigh in on the subject when it decides a case it is scheduled to hear argument in today, Elonis v. United States.
The basic legal principle at issue is what constitutes a “true threat.” It is a crime to use the phone or Internet to make a “threat to injure” another person. And “true threats” are not protected as speech under the First Amendment. So, “true threats” to injure another made via Facebook can be punishable as crimes. Otherwise, the speech would be protected by the constitution and could not be considered criminal.
But what’s a “true threat?” Is that question to be answered by the “reasonable person” who would be subject to the threat? Or does the speaker have to have intended his words as a threat to constitute a criminal act?
In Elonis, the defendant was arrested after making violent threats directed to his ex-wife (and others). At trial, he testified that he did not intend to frighten anyone and compared his posts to rap lyrics. The jury didn’t buy it and found that a reasonable person would have viewed the posts as “true threats.” So now the Supreme Court will decide what the “true test” for “true threats” should be.
The legal issue may appear easier than it is. The facts of the case may make the speech and speaker less sympathetic. For example, his Facebook comments included the following about his wife, after she left with their two children:
If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and murder.
He later posted, “I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.” And, when a court issued the wife a protective order, Elonis posted whether it was “thick enough to stop a bullet.” He also threatened to kill an FBI agent and to slaughter a class of kindergarten students, reports the LA Times.