The specific case being heard is Elonis v. United States. In the case Anthony Elonis was convicted of writing graphic fantasies about killing his wife and other women he knows on Facebook. Elonis argues that his posts were meant as rap music lyrics and that the court should view them using a subjective intent standard, meaning they should look at how they were intended. The original prosecutors thought that the court should look at an objective standard, meaning that they should look at whether a reasonable person would perceive what was written as a threat.
This is a difficult thing for courts in general to interpret. There has been centuries of case law based upon verbal threats where the tone and actions of the person making the threats could be taken into consideration. But it’s difficult to understand the tone, context or intent of something written online.
In judging if the standard should be objective the Court has the difficult task of defining a “reasonable person”. Language that might shock somebody’s grandmother might be very normal for teenagers. We live in a world with extreme subcultures. Groups like rappers, skinheads, white supremacists and even war gamers use language within their sub-culture that might be shocking to anybody else. Should people in these subcultures be prosecuted for using language that is different than the societal norm?
The case happens to be very timely because there is a lot of discussion currently about Internet threats. For example, there has been a lot of coverage of ‘gamergate’ where male war gamers have been harassing and making threats against women who say that the gaming culture is too sexist. And there are numerous cases of on-line bullying where kids are harassed in the net.
The outcome of this case has implications for both the police and for ISPs. If the Supreme Court takes the side of the government in the case they could be opening up the floodgates for prosecutors arresting people for what they say on the Internet.
In this particular case Elonis comes across as an unsavory character. The on-line postings began immediately after he split with his wife. He then harassed a coworker and got fired. The final postings that got him arrested talked about killing a female FBI agent who had questioned him about his postings about shooting up an elementary school.
It certainly appears that Mr. Alonis has a lot of issues. But when the Supreme Court chooses between judging him with a subjective or objective standard they will be giving guidance for how other on-line speech should be treated. We are all aware of the phenomenon where people on-line tend to be more aggressive and say thing that they would never say in person. There is something about the anonymity of sitting at a keyboard that lets people go farther with speech than they normally would. But should people go to jail for saying something outrageous on the Internet?
There is also an implication in this for ISPs. ISPs are often the first party contacted when somebody is threatened on-line. ISPs have a wide range of responses to such requests. Some do nothing and tell people to contact law enforcement. Others will take action and ban a customer who is harassing somebody else. So ISPs ought to pay attention to this ruling to make sure that you understand if there is going to be a change in the national standard for on-line harassment.
There are many in the country who don’t entirely trust law enforcement to be even-handed. One can envision indictments against what people write on the Internet as an easy way for the police to harass somebody. There certainly is a debate raging in the country about how far a police force ought to be able to go with using military might or in shooting suspects.
But on the flip side there is a lot of on-line harassment. But there is also a lot of real life harassment that people don’t get normally prosecuted for. I’m sure many of you saw a recent video of a woman who was the subject of multiple catcalls and lewd statements as she walked down city streets.
Our society seems to be reassessing what we find acceptable as normal behavior. Laws often change as a reaction to a change in societal norms. We certainly had times in our past where it was unacceptable to assail women in the street. But we are now at the other extreme and it would not be unusual for the pendulum to swing back the other way towards less permissiveness.
There probably is nothing harder to deal with in the Country than our first amendment speech rights. Courts have usually protected free speech even when it’s vile and not the norm. But we also know that threats of any kind often turn into later actions, and this court is being asked to figure out a national policy on a very tough issue.