Facebook and the Supreme Court

Williebee · Jun 16, 2014

The Supreme Court agreed Monday to consider a classic free speech conundrum for the 21st century: When do threatening comments made on social media sites such as Facebook cross the line into criminal activity?

Two lower federal courts ruled that Anthony Elonis crossed that line in 2010 when he mused on his Facebook page about killing his wife and others, including an FBI agent who was investigating his actions.

The bolded (by me) section is really interesting. It doesn't say that Elonis actually threatened anyone -- that the language was "I'm gonna kill..." . Please, read the story. It's interesting, and disturbing (imo).

In seeking the high court's review of his conviction, Elonis' attorneys contend he never intended actual violence. What the justices have to decide is whether that matters, as long as a "reasonable person" would feel threatened.

It's established that it is illegal to shout fire in a crowded theater.

Is it illegal to shout "I want to kill my wife." while standing on a city street corner?

How about on a DJ on a radio broadcast, or a guy on a TV broadcast?

How about in a book? Or what if your words are just a particularly well written threat from someone else's books?

And, does that compare, if an individual's FB page isn't open to the public? If it is set to only be visible to Friends or Friends of Friends?

veinglory · Jun 16, 2014

"There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

That sure sounds like a threat to me.

http://www.huffingtonpost.com/2014/06/16/supreme-court-online-threats_n_5499068.html

He also posted about committing a school shooting.

Williebee · Jun 16, 2014

Yeah, I should probably have made it clear that I'm NOT defending the guy. It is just that, the way the story was written, caused my mind to follow the thread. It may be that the "disturbing" aspect of the story, for me, was created by the way the story was crafted.

Diana Hignutt · Jun 16, 2014

In general, it's a tricky legal issue...in this case? Not so much.

raburrell · Jun 16, 2014

Yeah, I'm kinda surprised this made it this far as a case. Seems like there'd be plenty more questionable cases to choose from. Though I suppose there's the old 'hard cases make bad law' idea as well.

Self-entitled violent dipshit is self-entitled violent dipshit, as far as I'm concerned.

Gilroy Cullen · Jun 16, 2014

I'm kinda amused that he's trying to use the fact that a "reasonable person" doesn't know him on social media and would take everything out of context.

Guess this goes back to teaching the old ways of the internet: THINK before you post ANYTHING.

No wait. From the way the article is written, he didn't.
Huh...

Myrealana · Jun 16, 2014

There was a story on This American Life a while back about a guy who posted a paraphrase of a threatening rant from "Fight Club" after getting the run-around at an Apple store.

The SWAT team came to his home and arrested him. He was charged with making terrorist threats and some other BS.

Megann · Jun 16, 2014

For some reason this thread reminds me both of Elliot Rodger as well as Minority Report.
Many people make threads toward others. Sometimes it's a specific person and at other times it's an entire group of people. How can you tell if someone will act on the threads they make? Also, why do some cases make it into court and others are ignored until it's too late?

Albedo · Jun 16, 2014

I was pretty sure that threats, being assault under the common law, have always been criminal.

veinglory · Jun 16, 2014

He is trying to say they were "rap lyrics" and thus defended creative expression. IMHO, enough of the clear threats were not in any kind of "lyrics" context that this defense is pure bollocks. They were specific, directed at a named person, and in the form of a declaration not any kind of performance or artwork.

DancingMaenid · Jun 16, 2014

Albedo said:
I was pretty sure that threats, being assault under the common law, have always been criminal.

Exactly. Threatening people, even if you don't plan to follow through on it, can already be a crime.

The tricky part, sometimes, is determining what counts as a threat.

emax100 · Jun 16, 2014

DancingMaenid said:
Exactly. Threatening people, even if you don't plan to follow through on it, can already be a crime.

The tricky part, sometimes, is determining what counts as a threat.

One part is finding a uniform way of determining what actually constitutes a danger to the safety of another and that often depends on a proper analysis of the person who made the threat. Here's a case that showed some of the severe problems: http://www.austinchronicle.com/news/2014-02-28/facebook-threat-case-unresolved/ I ave posted about this case before but it feels it warrants being shown again to illuminate the discussion on this.

It would be much better if we could determine when these kinds of postings are a mental health issue and when they are a law enforcement issue. Of course, our mental health system and our ability to properly integrate mentally unhealthy people into society is such a joke that it becomes awfully hard to do and the temptation becomes to great to treat it as a law enforcement issue. That guy in the above posting is facing 8 years in jail; the odds were very slim we was a severe threat now but if he gets convicted, he will serve 8 years, the system will throw him back out and close its eyes and forget about him and the odds of him being a threat to society are exponentially greater if he serves 8 years and makes it all the way.

DancingMaenid · Jun 16, 2014

emax100 said:
One part is finding a uniform way of determining what actually constitutes a danger to the safety of another and that often depends on a proper analysis of the person who made the threat. Here's a case that showed some of the severe problems: http://www.austinchronicle.com/news/2014-02-28/facebook-threat-case-unresolved/ I ave posted about this case before but it feels it warrants being shown again to illuminate the discussion on this.

It would be much better if we could determine when these kinds of postings are a mental health issue and when they are a law enforcement issue. Of course, our mental health system and our ability to properly integrate mentally unhealthy people into society is such a joke that it becomes awfully hard to do and the temptation becomes to great to treat it as a law enforcement issue. That guy in the above posting is facing 8 years in jail; the odds were very slim we was a severe threat now but if he gets convicted, he will serve 8 years, the system will throw him back out and close its eyes and forget about him and the odds of him being a threat to society are exponentially greater if he serves 8 years and makes it all the way.

Well, and in that case, I'd say it's neither a mental health nor a law enforcement matter. From all reports that I've seen, it comes across as a matter of a sarcastic, non-specific joke that was misinterpreted.

emax100 · Jun 16, 2014

DancingMaenid said:
Well, and in that case, I'd say it's neither a mental health nor a law enforcement matter. From all reports that I've seen, it comes across as a matter of a sarcastic, non-specific joke that was misinterpreted.

That is what most people think, but in Comal County a prosecutor who perhaps thinks this could be a victory she can brag about during cocktail hour to her colleagues wants to lock this guy away for eight years, greatly raising the risk once he gets out that he actually does become the next Adam Lanza or Elliot Rodger. It is getting to the point where I want someone to do something about our mental health and criminal justice systems NOW; I don't care what political party they are or what their other social and political views are.

raburrell · Jun 16, 2014

As much as eight years is overkill, I'm having a hard time mustering sympathy for this kid. Maybe he'll learn that not everyone thinks dead first graders are funny.

kaitie · Jun 16, 2014

emax100 said:
That is what most people think, but in Austin a prosecutor who perhaps thinks this could be a victory she can brag about during cocktail hour to her colleagues wants to lock this guy away for eight years, greatly raising the risk once he gets out that he actually does become the next Adam Lanza or Elliot Rodger. It is getting to the point where I want someone to do something about our mental health and criminal justice systems NOW; I don't care what political party they are or what their other social and political views are.

I just want to point out that this is why it's so incredibly difficult to prosecute or arrest or institutionalize someone even if they make a threat. Because if the prosecutor did nothing and he did kill his wife or shoot a bunch of people at a school, then everyone would be saying, "Why didn't they arrest him for making threats before hand and prevent this massacre!?"

I truly, truly doubt, however, that a prosecutor is willing to just throw him in jail for eight years just to make a name for herself or prove a point that saying stupid things online is stupid. I imagine she is erring on the side of caution, and truly does feel that he is a threat. Unless you know otherwise, it seems rude to accuse her of something as heinous as trying to put someone in prison to gain credibility.

MarkEsq · Jun 16, 2014

kaitie said:
I truly, truly doubt, however, that a prosecutor is willing to just throw him in jail for eight years just to make a name for herself or prove a point that saying stupid things online is stupid. I imagine she is erring on the side of caution, and truly does feel that he is a threat. Unless you know otherwise, it seems rude to accuse her of something as heinous as trying to put someone in prison to gain credibility.

Correct. And thank you, Kaitie, I get fed up reading comments like this, easy accusations to make, backed up with nothing, and insulting to those of us who do the job. Believe it or not, emax, we don't get credit from our colleagues or anyone else for locking people up for a long time regardless of their actions.

Also, emax, if you wouldn't mind reading your own link before posting it, the prosecutor handling the case isn't in Austin.

solodave · Jun 16, 2014

While this may be besides the point, even if he had recorded a song with these facebook posts as rap lyrics, he may still not be protected from the law.

RichardGarfinkle · Jun 16, 2014

+1 to katie and Mark.

Further, here's a discussion of when threats of violence are not protected.

The Ninth Circuit concluded that a “true threat” is “a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person.” “It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.”

Note please that the person being threatened is not some abstract persona trash talking online, but the man's wife who had left him. In circumstances like that, threats should be taken seriously, because all too often they aren't with tragic consequences.

Facebook and the Supreme Court

Williebee

Capeless, wingless, & yet I fly.

veinglory

volitare nequeo

Williebee

Capeless, wingless, & yet I fly.

Diana Hignutt

Very Tired

raburrell

Treguna Makoidees Trecorum SadisDee

Gilroy Cullen

Handsome servant of a redhead

Myrealana

I aim to misbehave

Megann

Albedo

Alex

veinglory

volitare nequeo

DancingMaenid

New kid...seven years ago!

emax100

DancingMaenid

New kid...seven years ago!

emax100

raburrell

Treguna Makoidees Trecorum SadisDee

kaitie

With great power comes

MarkEsq

Clever title pending.

solodave

RichardGarfinkle

Nurture Phoenixes