Both parties
in the high-profile Elonis vs. United States had their day before the Supreme Court yesterday, and lawyers and analysts alike
aren't sure what to make of the Court's reaction to oral arguments.
Elonis (described in detail
here) is shaping up to be a real barn burner because it tackles a question almost all of us have asked ourselves at some point:
can you SAY that on Facebook?
"That" being, of course, profanity- and violence-saturated rants directed at a particular person or group of people.
We don't have a cohesive standard for what constitutes a "true threat" against another person, and the murky waters of social media have added an extra layer into an already complicated case. Platforms like Facebook and Twitter provide a kind of semi-anonymous catharsis for users; you can post a picture, or a song lyric, or random thought, and (barring any run-ins with the platform's TOS) no one can find cause to complain because it's your space on the internet to use as you wish.
Enter Elonis' pointed, violent rants.
Is it enough to claim catharsis and artistic expression when your content is clearly aimed at another person, and that person feels threatened? Elonis' attorneys are
banking on the Nine to accept this argument:
John Elwood, a lawyer for Mr. Elonis, said prosecutors should have to show that someone accused of making threats intended to put the listener in fear. Merely being reckless with comments on Facebook or elsewhere shouldn’t be enough to make someone guilty, he said.
“Many of the people who are being prosecuted now are teenagers who are essentially shooting off their mouths or making sort of ill-timed, sarcastic comments which wind up getting them thrown in jail,” Mr. Elwood said.
He cited a Texas prosecution of a teenager who made remarks in a videogame chat room about attacking a school. And he suggested the government’s preferred legal approach would allow the prosecution of someone from Ferguson who tweeted a violent message along with a picture of police officers during the riots.
Justices Alito and Ginsburg balked at this argument, with Alito citing concerns that condoning Elonis' conduct could lead to a situation where estranged spouses could post threatening content against their partner and get away with it, and Ginsburg asking how a prosecutor could somehow tease out what was in the perpetrator's mind when he posted the threatening content.