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Case Studies

When Is a Facebook Post a Real Threat?

Offensive and threatening language has become all too common in the infosphere and especially in interactive social media. In the United States the right to free expression, protected by the First Amendment of the U.S. Constitution, is quite broad. However, that right to free expression does not include the right to make a hostile threat directed at another person. A “true threat” is illegal even in the free-wheeling realm of cyberspace. The issue has taken on greater salience due to the rise of social media and microblogging, where many more people have a forum to use threatening and abusive language. But how much latitude should people have to express themselves on Facebook, Twitter, or YouTube or on other social media sites?

The case of an aspiring rapper, Anthony Elonis, has crystallized the issue in cyberspace jurisprudence and has also raised several moral questions. Elonis posted a series of menacing remarks on Facebook about his estranged wife. Some of those remarks included threats against her life. In one particularly virulent post he wrote, “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” Several of the most serious threats took the form of rap lyrics: “Little Agent Lady stood so close/Took all the strength I had not to turn the bitch ghost/Pull my knife, flick my wrist, and slit her throat.”

Mr. Elonis was arrested and indicted under federal law of allegedly transmitting communications across state lines that incorporate a threat. A motion was filed to dismiss the indictment based on the argument that these statements were protected speech (rather than “true threats”) under the First Amendment, particularly because there was no proof of any subjective intent on Elonis’s part to threaten his wife. But in rejecting this motion, the court noted the application of an “objective speaker test,” under which a communication is a true threat (and therefore not protected by the First Amendment) if a defendant intentionally made the statement and a reasonable person would foresee that such a statement would be interpreted by those to whom the speaker communicates the statement as a serious expression of an intention to inflict bodily harm.

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C o p y r i g h t 2 0 2 0 . J o n e s & B a r t l e t t L e a r n i n g .

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The courts dealing with this and other cases have grappled with the appropriate legal standard for what constitutes a “true threat.” Should prosecutors have to prove that there was a subjective intent to threaten someone? Or is it adequate to demonstrate that a “reasonable person” would regard the words in question as a threat or that the victim feels threatened in some way? The lawyers for Mr. Elonis have argued that a prosecutor must show that the individual accused of making threats clearly intends to put the victim in a state of fear or intends to do psychological or physical harm. Also, to what extent does context matter? Rap songs by Eminem, no matter how vile, are a form of entertainment, but Mr. Elonis’s random posting and amateur rap lyrics on his personal Facebook page could not really be considered entertainment.

During the trial, Elonis, through his lawyers, argued that his words were misinterpreted—they weren’t really a threat, he claimed, but a “therapeutic” way of working out his anger and frustration. These incendiary lyrics were just “fictitious,” and not meant to be taken seriously. But those arguments fell on the deaf ears of an unsympathetic jury.

In 2012, Elonis was convicted and sentenced to 4 years in jail. Elonis’s lawyers quickly appealed his conviction, but in 2013 it was upheld by the 3rd Circuit Court of Appeals. The appeals court strongly rejected the argument that proof of subjective intent is required by the First Amendment, and Elonis’s conviction was not overturned as he had hoped. Meanwhile, the case began to attract national attention.

Free-speech activists expressed their serious reservations about this case and about the implications for people who post on Facebook and other forms of social media. Those concerns became increasingly evident as the legal drama continued. In their petition to the Supreme Court to take their client’s case, Elonis’s lawyers argued that online communication makes it more difficult than ever to interpret the meaning of a statement. Hence, this means that it is vital for a jury to take into account Elonis’s in writing hisintent posts rather than just consider how a hypothetical reasonable person might evaluate a threatening statement. According to Elonis’s lawyers, the “impersonal nature of online communication makes such messages inherently susceptible to misinterpretation.”

The case of was heard by the U.S. Supreme Court in 2015. The Court,Elonis v. U.S. seeking to resolve a complicated web of free speech issues, threw out the Elonis conviction because the jury did not take into account Elonis’s intentions.

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What is the right standard for determining an online threat, and why is this issue more complicated in the world of interactive social media? Did the Supreme Court make the right decision in this case? If you were one of the nine justices, would you uphold Elonis’s conviction or toss it out?

Case Studies

Are Video Games Free Speech?

The video game industry dates back to 1972, when Magnavox first introduced a game console called Odyssey. The industry grew rapidly in the 1980s and 1990s in parallel with the explosive expansion of the PC industry. Companies like Atari and Nintendo fueled that growth thanks to popular games such as and .Super Mario Brothers The Legend of Zelda

Nintendo was overtaken by Sega’s popular consoles, beginning with Genesis in 1988. But 7 years later Sony launched PlayStation and became the industry leader within a few years. Worried that game consoles could become a substitute for PCs, Microsoft entered this competitive industry in 2001 with its Xbox console. Microsoft, Sony, and Nintendo now dominate the $11 billion dollar industry. Popular games include , ,Grand Theft Auto Manhunt and the mature-rated series. New-generation consoles include advancedFallout functionality. PlayStation 3, for example, plays high-definition DVDs, stores photographs and music, and even permits video conferencing. Both PlayStation 3 and Microsoft’s Xbox 360 support online gaming so that users can play video games with their friends over the internet.

Some video games have questionable content. They are laced with graphic violence or sexual aggressiveness. Like the movie industry, the video game industry has adopted its own voluntary internal rating system that informs consumers about the content of games. Video games are rated by the Entertainment Software Rating Board on a scale from EC (early childhood) to M (mature). Dealers are encouraged to refrain from renting or selling M-rated games to minors under the age of 17 without parental consent.

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In 2005, the state of California prohibited the sale or rental of violent video games to minors. The state believed that the voluntary industry rating system was inadequate, so it established a law preventing persons under the age of 18 from purchasing games labeled as violent by state authorities. Violent games were defined as those that gave players the opportunity to “kill, maim, dismember or sexually assault the image of a human being.” For example, a game is considered violent if there is “needless mutilation of the victim’s body.” One game covered by the new law “involves shooting both armed opponents, such as police officers, and unarmed people, such as school girls; girls attacked with a shovel will beg for mercy—the player can be merciless and decapitate them.” The reasoning behind this legislation was grounded in the conviction that interactive, ultraviolent video games increase aggressive thoughts and feelings.

The California law was immediately challenged in court by the video game industry, represented by the Video Software Dealers Association. The industry maintained that this law stifled their creative expression and so violated its First Amendment rights. The plaintiffs argued that these games are entitled to First Amendment protection and that attempts to regulate their content are not allowed. The plaintiffs also contended that the state’s definition of violence was too vague. For example, according to the statute, violence meant to “virtually inflict a serious injury upon images of human beings or characters with substantially human characteristics.” But what about zombies, centaurs, or other nonhuman characters with magical powers that still possess some “human characteristics”? The State of California, on the other hand, argued for the need for its involvement to ensure the health and well-being of the state’s children.

The U.S. District Court of California issued an injunction barring California from enforcing the law. The Ninth Circuit concurred, arguing that the law was invalid because it amounted to content-based restriction on speech. The law was presumptively unconstitutional because “the State, in essence, asks us to create a new category of non-protected material based on its depiction of violence.” The Ninth Circuit claimed that California failed to exhibit definitive proof of any causal connection between violent video games and the aggressive behavior of minors. Although the First Amendment does not protect obscene speech, violent imagery or content does not fall under the category of obscenity. Also, the Ginsberg ruling protecting minors from pornography does not apply, because that case involved a subcategory of obscenity, that is, obscenity for minors, which is not an issue in this case. The case was then sent to the U.S. Supreme Court, where a central issue emerged: Are games entitled to First Amendment protection in the same way as other forms of speech, such as music or books?

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