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Joan E. Solsman/CNET
The Supreme Court has thrown out the conviction of a Pennsylvania man for making violent posts on Facebook in a case that tests the boundaries of free speech on the Internet.
The conviction of Anthony D. Elonis was based on the idea that Facebook comments about his ex-wife, former co-workers, shooting up a school and harming law enforcement would make a reasonable person feel threatened.
In a 7-2 ruling Monday, the court reversed his conviction, stating that the threats weren’t enough to convict.
“Our holding makes clear that negligence is not sufficient to support a conviction,” Chief Justice John Roberts wrote, in the high court’s first case addressing free speech on social media.
The high court took on Elonis’ case a year ago, citing whether a conviction for threatening another person under the law — in this instance, via social media — “required proof of the defendant’s subjective intent to threaten.”
The case marks a new point in the debate about free speech and the Internet. Countries around the world have grappled with articles, videos and photos posted to the Web that either violate their laws or upset their sensibilities. Some have taken to blocking websites en masse, while others have punished those responsible for uploading the information.
In the US, where freedom of speech is enshrined in the Constitution, the Supreme Court’s decision in Elonis’ case may leave more unanswered questions — what exactly constitutes a threat made on the Internet, what should be taken at face value and what should be considered freedom of speech?
Posts seen as threatening or bullying are forbidden on Facebook and other social networks such as Twitter. Facebook’s terms of service, for instance, takes this stance: “You may not credibly threaten others.” Those services tend to delete the violent content or user accounts and move on — although Facebook does say it “may escalate to law enforcement when we perceive a genuine risk of physical harm, or a direct threat to public safety.”
Facebook enables its users to register complaints and call out potential offenses such as harassment, hate speech or sexually explicit content. The company says it processes about 1 million legitimate complaints every week.
In this case heard by the Supreme Court, Elonis, using the pseudonym “Tone Dougie,” began posting violent messages on Facebook five years ago after his then-wife of seven years, Tara, left him and took their two children.
“There’s one way to love you, but a thousand ways to kill you,” Elonis wrote. “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
His wife testified that she was scared and got a judge to issue a protection order against him. He was also fired from his job at an Allentown, Pa., amusement park for threatening his co-workers on Facebook.
Elonis’ former employer contacted the FBI, which began monitoring his Facebook activity and eventually arrested him. Elonis claimed he was just exercising his First Amendment rights and that his comments were a form of therapy.
Elonis and his lawyers also argued in court that he never meant to carry out his threats. However, a jury convicted Elonis and he was sentenced to nearly four years in federal prison on four counts of transmitting threats. He was released last year.
In subsequent appeals, Elonis maintained that his posts were artistic in nature and were just rap lyrics inspired by rap star Eminem (who also rapped about killing his ex-wife), and that he was entitled to freedom of speech under the First Amendment.
The Supreme Court, which has avoided social media cases in the past, said Monday that the legal standard used to convict Elonis was too low, but did not specify what the standard should be.
The court also said it was unnecessary to consider any First Amendment issues in reversing Elonis’ conviction. Roberts wrote the reasonable person standard is “inconsistent with the conventional criminal conduct requirement of ‘awareness of some wrongdoing.'”
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His colleague Justice Clarence Thomas dissented outright. Justice Samuel Alito dissented in part with the ruling. Alito said his seven colleagues who overturned Elonis’ case gave “only a partial answer.”
“The court refuses to explain what type of intent was necessary. Was it enough if he knew that his words conveyed such a threat?” Alito wrote. “Would recklessness suffice? The court declines to say. Attorneys and judges are left to guess.”
Monday’s ruling means Elonis’ case will go back to a lower court that will determine whether he meant what he said, or if he was exercising his right to free speech.
If a lower court rules that Elonis’ posts were intentional, his conviction will be upheld.
