Where should the line between free speech and accountability be drawn on social media?
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A panel at the ABA’s Midyear Meeting today debated whether, and how, social media should change rules that draw the line between free speech and threats.
“Free Speech and Accountability on Social Media: Where to Draw the Line?” looked at the recent U.S. Supreme Court case of Elonis v. United States, which the court has not yet decided. In oral arguments heard Dec. 1, lawyers for Anthony Elonis argued that he should not have been convicted of making online threats against his former wife; an FBI officer who interviewed him; law enforcement and a local kindergarten. In all four cases, Elonis posted the threats on his Facebook page.
The threats were not subtle. Panel moderator Sherri Bevan Walsh, the elected prosecutor for Summit County, Ohio, read out threats to the former wife that included: “Fold up your [protective order] and put it in your pocket. Is it thick enough to stop a bullet?”
After an FBI agent visited his home in response to these postings, Elonis posted that it “Took all the strength I had not to slit her throat.” He also threatened to shoot up a kindergarten and commit violence against law enforcement.
Despite his arguments that he was an aspiring rapper just posting lyrics, he was ultimately convicted of four counts of violating 18 U.S.C. S875(c), transmitting a communication intended to threaten another. In his appeal to the high court, he argued that the court should not have used the current standard for such a conviction—whether the communication would be taken as a threat by a reasonable person—but ask instead whether Elonis himself intended that his posts be taken as a threat.
All three panelists agreed that context is everything in a stalking or abuse context—a request to “be careful crossing the street” could be taken as threatening under certain situations, for example. But they had different approaches to whether and how the law should be changed to account for social media.
Rusty Hardin, a Houston defense attorney, was wary of changing the law “to deal with the hot-button issue of the day.” Prosecutors have to determine intent all the time, he said, and leaving it out can lead to unfair convictions. And “reasonable,” he said, is dangerously subjective.
But Michael Moore, the president of the National District Attorneys Association and the elected state’s attorney for Beadle County, South Dakota, said it would be tough to ask juries to determine intent, practically speaking.
“[The jury would] say there’s no doubt he knew he was placing his victim in fear, but did he intend to?” Moore said.
Jeffrey Dion of the National Center for Victims of Crime noted that people will say things online that they’d never say in person. Hardin argued for a recklessness standard that could cover abusive and cruel behavior, but not prohibit negligent statements. This would be less strict than the current standard, but stricter than the one Elonis argued for.
Dion’s organization submitted an amicus brief (PDF) in Elonis supporting the government’s position. The worst thing that could happen to victims here, he said, would be a decision that loosens standards so much that prosecutors no longer have the tools to address stalking.
However, the panelists also agreed that Elonis was properly convicted.
“Bad cases obviously make bad law,” said Hardin. “This guy would have been convicted under any frickin’ standard.”
