Facebook threats and the Supreme Court: a guide to today’s case

The Supreme Court on Monday will hear the appeal of a man who went to prison for posting violent rants on Facebook. The case will shape the future of what people can and can’t say online, and is being closely watched by the tech industry, domestic violence groups, and civil libertarians.

Here’s a short overview of the facts and the law, and where to learn more.

What did the man write on Facebook to land in such trouble?

Anthony Elonis, a 31-year-old man from a small town in Pennsylvania, served more than 3 years in prison over a series of Facebook posts in which he threatened to kill his ex-wife, strap a bomb to his chest and shoot up a kindergarten class. Elonis says he never intended to harm anyone, and the Facebook posts — many of them rap lyrics quoting Eminem — were just a way of  a venting, and that the violence he described was no more than hip hop-inspired hyperbole. He says it was his way of coping with setbacks, including his wife and kids leaving him, and losing his job at a local amusement park.

Why is the case such a big deal?

This is the first time the Supreme Court has looked at limits on online speech. The decision will affect what people can say on Facebook, and on a wide variety of other internet platforms, such as Twitter, blogs and comment boards.

The case is also about internet culture as a whole, including the violent language used by certain online communities. The ACLU and others say such language is just a form of expression and not an actual threat, and that criminalizing it will chill speech and give police new powers to go after ordinary internet users. But governments and domestic violence groups claim such speech has a limit, and people like Elonis can’t invoke the First Amendment to threaten and scare people with impunity.

The case turns on whether the prosecution should have to show that Elonis intended the threats to be real or if, instead, it’s enough to show that the average person — such as Elonis’s wife — would believe them to be real. The first is a subjective test that takes full account of the context such as, in this case, Elonis’ hip hop aspirations (his lawyer says he rapped in small arenas like Eminen once did). The other test is objective, and is easier for the government to prove.

Put another way, should online threat cases should be like the criminal law, which requires proof of intent? Or is a “reasonable person” standard, used in civil law, enough?

What is the Supreme Court likely to decide?

The case involves novel issues that the Justices have not ruled upon before so, unlike many cases, few are predicting how this one will turn out. It’s even harder to guess since the judges have little first hand experience with social media sites like Facebook or with hip hop (all but Justice Sotomayor prefers opera). Some point out, however, that the court may decide to avoid a sweeping First Amendment ruling, and may write a narrow ruling that applies just to the specific law used to convict Elonis.

(Update: a recap of Monday’s arguments suggests the Justices struggled with how to resolve the case)

When is the decision likely to come out?

It will almost certainly come out in 2015, probably in January or February.

Where can I learn more about all this?

Argument preview: Social media as a crime scene (SCOTUS blog has its usual excellent run-down of the all the background and legal arguments)

Do Online Death Threats Count as Free Speech? (The New York Times magazine highlights both the legal issues and the implications for women)

Facebook Threats Go to High Court in Hip-Hop Free-Speech Case (Bloomberg’s report focuses on Elonis’s specific threats and the role of hip-hip culture)

The Supreme Court is about to tackle online threats for the first time (Sarah Jeong writing at the Verge describes how the case relates to “Gamergate” and online harassment of women)

Supreme Court’s Robust New Session Could Define Legacy of Chief Justice (An October report by Adam Liptak of the New York Times situates the Elonis case within the Chief Justice’s larger free speech agenda)