1 Social Media & Free Speech

2 Doc 1 Do Online Death Threats Count as Free Speech?

3 Exhibit 12 in the government’s case against Anthony Elonis is a screenshot of a Facebook post he wrote
4 in October 2010, five months after his wife, Tara, left him. His name appears in the site’s familiar blue,
5 followed by words that made Tara fear for her life: ‘'If I only knew then what I know now . . . I would
6 have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad
7 Creek and made it look like a rape and murder.'’

8 After Tara saw these posts — and another one, from the same time, which begins: ‘'There’s one way to
9 love ya but a thousand ways to kill ya. I’m not gonna rest until your body is a mess, soaked in blood and
10 dying from all the little cuts'’ — she went to court in Reading, Pa., and got a protection-from-abuse order
11 against her husband.

12 On Nov. 7, three days after Tara got the ruling, Elonis linked to a video satire by the comedy troupe the
13 Whitest Kids U’ Know. On camera, a member of the group mocks the law against threatening to kill the
14 president. Elonis mimicked the group’s lines but substituted in his own text, to make it about Tara. ‘'I also
15 found out that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best
16 place to fire at her house would be from the cornfield behind it because of easy access to a getaway road
17 and you’d have a clear line of sight through the sun room,'’ he wrote. ‘'Yet even more illegal to show an
18 illustrated diagram.'’ Elonis added a diagram with a getaway road, a cornfield and a house. ‘'Art is about
19 pushing limits,'’ his post concluded. ‘'I’m willing to go to jail for my Constitutional rights. Are you?'’

20 In December 2010, Elonis was charged under a federal law that makes it a crime to use a form of
21 interstate communication (like the Internet) to threaten to injure another person. A jury convicted Elonis,
22 and he spent more than three years in prison. On December 1, the Supreme Court will hear Elonis’s First
23 Amendment challenge to his conviction — the first time the justices have considered limits for speech on
24 social media. For decades, the court has essentially said that ‘'true threats'’ are an exception to the rule
25 against criminalizing speech. These threats do not have to be carried out — or even be intended to be
26 carried out — to be considered harmful. Bans against threats may be enacted, Justice Sandra Day
27 O’Connor wrote in 2003, to protect people ‘'from the fear of violence'’ and ‘'from the disruption that fear
28 engenders.'’ Current legal thinking is that threats do damage on their own.

29 Elonis, however, claims that he didn’t make a true threat, because he didn’t mean it. ‘'I would never hurt
30 my wife,'’ he told the jury. ‘'I never intended to threaten anyone. This is for me. This is therapeutic.'’
31 Talking about the loss of his wife, he continued, ‘'helps me to deal with the pain.'’ He had copied the
32 Whitest Kids U’ Know, along with the rapper Eminem, to try his hand at art and parody. ’ Indeed, for
33 several of his comments, Elonis posted disclaimers. Tara said she knew her husband had borrowed some
34 of his words, but they still scared her. ‘'I felt like I was being stalked,” she said in court. ‘'I felt extremely
35 afraid for mine and my children’s and my family’s lives.

36 The central question for the Supreme Court will be whose point of view — the speaker’s, or the listener’s
37 — matters. The jury was instructed to convict Anthony Elonis if it was reasonable for him to see that Tara
38 would interpret his posts as a serious expression of intent to harm her. The court could uphold the
39 standard, or it could require that jurors be asked to convict only if they believe the speaker truly intended
40 to threaten harm. In essence, the court will have to decide what matters more: one person’s freedom to
41 express violent rage, or another person’s freedom to live without the burden of fear?

42 The legal issue is connected to a larger question: how to deal with the frequent claim that online speech is
43 a special form of playacting, in which a threat is as unreal as an attack on an avatar in World of Warcraft.
44 If it’s possible to shrug off anonymous online threats, it’s much harder to do that when a threat is made by
45 someone you know intimately. In these cases, dread felt by targets is rational and may leave them
46 struggling to sleep, eat or work. To escape, they may uproot themselves and their families. This kind of
47 disruption fits with the Supreme Court’s rationale for allowing laws that ban threats. ‘'We usually think of
48 freedom of speech as enhancing liberty, but this is speech that takes away someone else’s liberty,'’ said
49 Danielle Citron, a law professor at the University of Maryland.

50 For years, activists have lobbied for laws that punish stalking, given that burden of fear. Elonis’s threats,
51 they say, should be treated like stalking because it was reasonable for Tara to feel threatened by them.
52 Cindy Southworth, a vice president of the National Network to End Domestic Violence, points out that
53 when a relationship goes bad, threats become both a tool of manipulation and a reliable predictor of
54 physical assault. ‘'Every abuser says, ‘I didn’t mean for her to think I would kill her,' '’ Southworth said.

55 But advocates for civil liberties want to give more breathing room to free speech and don’t think the
56 question of whether a statement online qualifies as a threat should be ‘'in the eye or ear of the beholder.'’
57 ‘'Words are slippery things, and one person’s opprobrium may be another’s threat.'’ In a case that worries
58 free-speech activists, a teenager named Justin Carter got into a Facebook exchange and wrote, ‘'I think
59 I’m gonna SHOOT UP A KINDERGARTEN.'’ After someone in Canada alerted the police, he spent
60 months in a Texas jail for that comment and is still facing charges. ‘'I wasn’t trying to scare anyone, I was
61 trying to be witty and sarcastic,'’ he wrote to the judge. ‘'I failed, and I was arrested.'’

62 To prevent people from being locked up over a misunderstanding, some want a higher bar for conviction.
63 ‘'The age-old principle is that we don’t criminalize speech without that clear intent,'’ said Lee Rowland,
64 an attorney. The truth is that even when intent to do harm seems obvious, online threats are rarely
65 prosecuted. Of course the right to freedom of speech is not unlimited; the classic example is that you can’t
66 shout “Fire!” in a crowded movie theater when there is actually no fire, because the resulting chaos could
67 lead to injuries or even death. The Supreme Court has held that the First Amendment also does not protect
68 “true threats,” but it has not specifically said how courts should decide what is (or is not) a “true threat.
69 Rowland looked at the federal law that is the basis for the Elonis case and found that it has been enforced
70 fewer than 50 times, online and off, over the past eight years. Stalking laws, domestic-violence advocates
71 say, aren’t enforced much, either.

72 If the Supreme Court requires evidence of a speaker’s intent to harm in true-threats cases, it could give
73 the police and prosecutors one more reason not to bring them. Maybe that’s simply the unavoidable
74 consequence of a broad interpretation of the First Amendment. Let’s be clear, though, that such an
75 approach to free speech doesn’t come free. The choice in this case between points of view — Anthony’s
76 or Tara’s — mirrors another choice, between types of personal liberty. His or hers.

Questions:

Whose point of view should serve as the criterion for judging the Elonis case
Should the court's decision turn on finding criminal intent on the part of the perpetrator of threatening
speech (Elonis) or should it be based on determining whether a reasonable person in the victim's position
(Tara) would feel threatened? Which standard should the court use to arrive at a decision? If you think
criminal intent has to be found on the perpetrator's side, should prosecutors have to prove that Elonis
intentionally made the communication? Or rather that his purpose was to threaten someone? Or that he
knew that it was virtually certain that someone would feel threatened? Or that a “reasonable person”
would foresee that others would view his statements as a serious expression of an intention to inflict
bodily injury or take the life of the addressee?
 The Elonis case is a landmark case because it is the first time the Supreme court will consider the limits
of free speech on social media. Predict the Supreme Court's decision and give reasons for your
prediction.

77 Doc 2 The Supreme Court & Free Speech Online

78
79 It was a big day for free speech at the U.S. Supreme Court. In two consequential decisions, the justices set
80 the terms for the First Amendment in the era of Donald Trump and the internet. In one, the court struck a
81 blow against political correctness, saying the Patent and Trademark Office could not refuse to register an
82 offensive trademark. In the other, the court declared social media to be the vast public forum for nearly all
83 expressions.The cases display the free speech absolutism that has become judicial orthodoxy in recent
84 years. In tandem, they frame the future of speech on social media. The government isn’t going to do the
85 regulating itself, and the rule of civility, if any, is going to have to come from the private media
86 companies.
87
88 The trademark case, Matal v. Tam, got more coverage before the decision, partly because it implicates the
89 refusal of trademark registration to the Washington Redskins. In an opinion by Justice Samuel Alito, the
90 court held that it was unlawful viewpoint discrimination for the government to issue all registrations
91 except those that disparage “persons, living or dead, institutions, beliefs, or national symbols, or bring
92 them into contempt, or disrepute.” Justice Alito expressed what was certainly the crucial line in the
93 opinion for him: “Giving offense is a viewpoint.” What Alito meant was that the government couldn’t
94 legitimately claim that the denial of a trademark registration for the band named “The Slants” was neutral
95 with respect to viewpoints because it targets offense against anyone at all. On a deeper level, Alito was
96 speaking out in favor of a right to offend. That is a contentious position in the broader culture over what
97 discourse should be allowed in public. But, it correctly states Supreme Court doctrine.
98
99 The social media case, Packingham v. North Carolina, may turn out to be more important in the long run.
100 At issue was a state law that barred registered sex offenders from using any social media that children are
101 permitted to use.The Supreme Court unanimously agreed that the law violated the free-speech rights of
102 sex offenders. In a majority opinion, Justice Anthony Kennedy offered a paean to the worries of the
103 internet in general and social media in particular. He listed various social networks and a range of human
104 activities that could be pursued on them. Constitutionally, this assessment supports the idea that blocking
105 sex offenders from social media was akin to blocking them from full range of free speech option available
106 in public spaces like parks and street corners. Justice Alito concurred separately, stating that Kennedy had
107 gone too far in making social media content free from government regulation. In particular, Alito wanted
108 to leave open the possibility of more focused laws that might, for example, keep sex offenders off teenage
109 dating sites.But, as Alito sensed, such regulations would have a very hard time surviving Supreme Court
110 scrutiny after the Packingham decision.
111
112 What is most striking about the two opinions taken together is what they mean for the regulation of
113 offensive speech on social media: The government is not going to get involved. In practice, what that
114 means is that the corporations that own and control social media are going to be squarely in charge of
115 shaping the norms of speech. Indeed, the First Amendment will be interpreted to protect Facebook,
116 Twitter and the rest of the social media universe in imposing the private rules they choose.

117 Things may turn out differently in Europe, where governments are increasingly pushing internet giants to
118 follow domestic speech regulations. In the U.S., however, the combination of the First Amendment and
119 private ownership of social media is creating a brave new world of free speech.