Free speech and social media: Where to draw the line

March 2015 | Around the Midyear Meeting

“There’s one way to love ya but a thousand ways to kill ya. I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts,” was the disturbing message that Anthony Elonis posted on Facebook to his wife after she left him and took their children with her. After receiving several other threats from him on Facebook, Elonis’ wife obtained a protection order and was granted custody of their children. 

One panelist said the basic principles of criminal law should be applicable to new forms of communication, like social media.

Believing he was exercising freedom of speech, Elonis continued to post intimidating messages on the social media site, expanding his anger with online threats to co-workers as well as his community, such as his call for gun violence at a local elementary school.

His Facebook profile included the following disclaimer: “All content posted to and by this account is strictly for entertainment purposes only and does not represent the views, beliefs or values held by Anthony Elonis, the person, LOL.”

Despite the disclaimer, Elonis was convicted of a federal offense and sentenced to more than three years in prison.

Panelists at a Feb. 6 ABA Midyear Meeting program titled, “Free Speech and Accountability on Social Media: Where to Draw the Line?” sponsored by the ABA Criminal Justice Section, discussed the case, Elonis v. United States, which is being heard by the U.S. Supreme Court.

Elonis is challenging his conviction, arguing First Amendment protection. His defense claims that the comments were satire and black humor, which should be given poetic license, and that Internet users may vent online if they state that they have no intention of acting upon their threats.

According to panelist Je­ffrey R. Dion, deputy executive director of the National Center for Victims of Crime, if the Supreme Court overturns Elonis’ conviction, it would invalidate a majority of stalking statutes in the United States.

“One of our biggest concerns in this case is that the standard they are looking at, on whether or not you have to look at the defendant’s subjective intent versus the reasonable-person standard … is that it is similar to the standards that are used in a majority of the states in stalking cases,” Dion said.

Dion further stated that threats cause harm, regardless of whether the intention to carry out the threat is real or not. “Victims are deprived of freedom and their lives are disrupted when they feel they can’t go to the grocery store, or they can’t drive their regular route to work, or they can’t let their kids walk to school by themselves because of the fear placed by this person’s threat.”

“In assessing the nature of the threat and the impact of the threat, context is everything,” he explained.

However, Rusty Hardin, a criminal defense lawyer in Houston, warned against dismissing the intention of the offender and encouraged the traditional application of criminal law. He said that a person’s intention can help distinguish between legitimate free speech and criminal conduct.

“Was [the threat] directed toward a particular person or a particular group that the person already has a grievance with? That helps you sort through the issue of what their true intent was,” Hardin said. “If it is somebody that is talking to the public at large, but nobody in mind, then it is just simply offensive speech. I think it is probably protected, no matter how offensive we think it is.”

Dion said the basic principles of criminal law should be applicable to new forms of communication, like social media. In his view, posting a threatening message on Facebook is no different than printing the same message on a newspaper advertisement, both of which would have the same detrimental effect on the targeted victim and should therefore not be protected as free speech.

“One of the things I think is important to refrain from –– and what unfortunately a lot of states have done –– is they try to create new laws and new statutes specifically for social media,” Dion said. “We should have a basic standard that we can apply to all types of media and all types of communication,  because we don’t have a ‘telephonic’ stalking law, we don’t have a ‘stalking-by-smoke-signal’ law.”

The U.S. Supreme Court heard oral arguments in December and a decision on the case is expected by the time the high court ends its term in June.