Supreme Court case could set standard for Internet threats

Elonis v. United States will be the subject of a conference at Brandeis on Dec. 2

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An image of the Supreme Court Building in Washington, DC.

That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever
And hell hath no fury like a crazy man in a
kindergarten class
The only question is . . . which one?

That's one excerpt from a series of Facebook posts made by Anthony Elonis in 2010. Other posts by the Allentown, Pa. man referenced fantasies of killing his estranged wife and acts of violence at an amusement park where he used to work.

The posts were taken seriously. The Federal Bureau of Investigation paid a visit to Elonis, which prompted more Facebook posts with violent imagery. He was eventually indicted and then convicted of five counts of making threats to injure. He was sentenced to 44 months in prison.

But Elonis has maintained he is innocent, arguing the posts were rap lyrics he wrote and references to pop culture. They were therapeutic for him and not intended as true threats, according to court filings by his lawyers, who have argued that Elonis' convictions are a violation of his right to freedom of speech.

The case is now under consideration by the U.S. Supreme Court, and its ruling could have an impact on how perceived threats over social media are viewed by the law. It has drawn attention from some of the biggest advocacy groups in the country, whom have submitted third party briefs to be considered by the Supreme Court.

Politics professors Daniel Thomas Kryder and Jeffrey A. Lenowitz, along with the students from POL 197a: The Supreme Court Colloquium, will hold a conference Dec. 2 "Threats, Free Speech, and the Law in the Internet Age: Elonis v. US" featuring experts who wrote some of those briefs.

Lenowitz and Yasser Kureshi, the graduate assistant for the course, answered some questions about the case for BrandeisNOW:

Professor Jeffrey Lenowitz
Jeffrey Lenowitz

What are the biggest questions this case is expected to answer?

Most generally, this case is expected to clarify when the law should take threats, particularly those made over the Internet, seriously. What has to be true of threatening language to make it a ‘true threat,’ a class of speech that can be prosecuted under the law? 

More technically, the resolution of this case will likely choose one of two answers to this question. On the one hand, the Supreme Court might endorse a subjective intent standard, meaning that the government must be able to prove that someone intended their words or text to be taken as a threat in order to successfully punish them. On the other hand, the Supreme Court might adopt an objective intent standard, which simply requires the government to show that, to a reasonable person, particular speech acts would be interpreted as threatening. The resolution of this case will likely have a great impact on how speech is conducted and patrolled both online and elsewhere.

What are the central arguments for a subjective intent standard and an objective intent standard? 

Proponents of a subjective intent standard argue that interpreting online communications such as posts on Facebook, without any additional context, could easily lead to misinterpretations by unfamiliar listeners or readers. This, they argue, would then have a chilling effect on online speech, for writers and speakers would fear the possibility of authorities misinterpreting and prosecuting non-threatening speech, since they will not have to worry about context. 

On the other hand, proponents of a more objective intent standard argue that online communications have reduced the costs and effort required for those who wish to threaten, to escalate their actions from internal thoughts to verbal threats. Emotional impulses that were formerly tempered by distance can now be immediately turned into easily-communicated threats. They argue that adopting a subjective standard will make the cost and efforts of prosecuting threats more costly and challenging at a time when the Internet is making the cost and efforts of communicating threats easier.

Are there any indications of how the Supreme Court may rule? 

At this point it would be difficult to say which way the Supreme Court may rule. The usual practice of assessing where on the traditional left-right political spectrum a particular ruling would lie, and then using our knowledge about the justice’s voting patterns and political tendencies to make a prediction is hard is this instance, for the case cuts across a lot of diverse political issues. 

This can be seen by looking at the amicus brief writers on each side of the case, many of whom are not usually in agreement with each other. In support of Elonis, just to name a few, we have the ACLU, the Cato Institute, Reporters Committee for Freedom of the Press, several pro-life groups, and PETA. On the U.S.’ side we have the Anti-Defamation League, the Domestic Violence Legal Empowerment and Appeals project, the National Center for Victims of Crime, and many conservative U.S. states. The difficulty of making a prediction is one of things that make this case so intriguing. Luckily for us, we have six of the amicus writers coming to talk to us and give us their view on the case. 

Oral arguments for the case are scheduled for Dec. 1. What happens next, and how long will it take for the Supreme Court to issue an opinion?

At the end of that week (of Dec. 1), the justices will meet, make preliminary votes on all of the cases that they heard, and choose majority and dissenting opinion writers. Following this, draft opinions will be circulated, rewritten, and the various coalitions of justices on each side will solidify. The decision and accompanying opinions will likely be announced during the last months of the current term, sometime between May and July.

For more information on "Threats, Free Speech, and the Law in the Internet Age: Elonis v. US" and a detailed schedule of speakers and events, visit the conference's website.

Categories: General, Humanities and Social Sciences

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