How Far is Too Far on Social Media?

social networkThe U.S. Supreme Court is scheduled to try a case involving a young rapper who posted death threats to his ex-wife on Facebook, which he claims was just “venting”, and will determine just how much “free speech” can be protected on social media.

The Washington Post is reporting on the case of Anthony Elonis, aka Tone Dougie,  a 27 year-old rapper who spent more than two years in jail for threatening his wife on Facebook.

His first threatening message was posted about a week after his wife, Tara, was granted a protective order against him.

In response, Elonis posted: “Fold up your PFA [protection-from-abuse order] and put it in your pocket. Is it thick enough to stop a bullet?”

Couching the threat in the typical prose style of rappers, complete with its violent misogynistic lyrics, he claimed that he was simply venting and that the message was just a therapeutic effort “to address traumatic events”, his lawyers claim. They insist that what matters most is not his actual intent but whether any reasonable person targeted in such a way on social media would regard such a posting as a real threat.

It seems like a tough case to argue, given Elonis’ history. As the Post reports, more than just his estranged wife became concerned about the violent postings he was making on Facebook shorting after she left him along with their two children. Elonis, an employee at Dorney Park in Allentown, Pennsylvania, posted a message about how friends thought he was a firecracker but he was actually a “nuclear bomb” about to go off after the Park did something that angered him.

His lawyer in the Supreme Court case, John P. Elwood, said that because the post was followed by an emoticon with its tongue sticking out, it was meant as a joke.

The Park disagreed and fired him.

Another posting suggested that his son dress up as “Matricide” for Halloween and carry his wife’s head on a stick.

He also posted messages about making a name for himself by shooting up an elementary school because “hell hath no fury like a crazy man in a kindergarten class.”

This particular post won him a visit from the FBI, whose female agent later became yet another target of a threat – “Little Agent Lady stood so close, took all the strength I had not to turn the b—- ghost, Pull my knife, flick my wrist, and slit her throat”.

Elonis ended up in court. Even though some judges require prosecutors to prove that a defendant actually intends to make good on a threat, this wasn’t the case in the U.S. Court of Appeals for the Third Circuit in Philadelphia where the judge instructed jurors to determine if the defense was able to prove that a reasonable person would view Elonis’ posts as valid threats.

According to the jury, Elonis’ lawyers failed to make this case and decided against him. Elonis went to jail and served almost three years of a 44 month sentence before being released.

His case is now coming before the U.S. Supreme Court which will force the justices, who apparently don’t even like to e-mail one another, to take a look at the complex world of social media – which is now a favorite of global terror groups – to determine what exactly is a “true threat” online.

“Parties on both sides of the groundbreaking case are asking the court to consider the unique qualities of social media,” the Post reports. “In this rapidly evolving realm of communication, only the occasional emoticon may signal whether a writer is engaging in satire or black humor, exercising poetic license, or delivering the kind of grim warnings that have presaged school shootings and other acts of mass violence.”

“Internet users may give vent to emotions on which they have no intention of acting, memorializing expressions of momentary anger or exasperation that once were communicated face-to-face among friends and dissipated harmlessly,” said a brief filed on Elonis’ behalf by the Student Press Law Center, the Electronic Frontier Foundation and the writers organization PEN.

On the other hand, experts in domestic violence say the use of social media to issue threats has been increasing.

In its brief, the National Network to End Domestic Violence says victims of domestic abuse “have experienced real-life terror caused by increasingly graphic and public posts to Facebook and other social media sites — terror that is exacerbated precisely because abusers now harness the power of technology, ‘enabling them to reach their victims’ everyday lives at the click of a mouse or the touch of a screen.’”

Regardless of how the Justices rule in the case, it will have enormous implications for free-speech rights and artistic license.

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