Elonis v US: online free speech still in the dock

Neil Ross

Topics Free Speech

On Monday, the US Supreme Court ruled in the case of Anthony Elonis, the Pennsylvania amusement-park worker who took to Facebook to post violent rap lyrics aimed at his estranged wife, co-workers and the FBI agents who came to investigate him. Under the pseudonym ‘Tone Dougie’, Elonis went online to vent, penning lyrics such as: ‘There’s one way to love you but a thousand ways to kill you… Hurry up and die, bitch, so I can bust this nut all over your corpse.’ The Supreme Court ruled that the original court case, which saw Elonis convicted for making online ‘interstate threats’, did not sufficiently prove that he intended for the posts to be threatening – an important requirement for him to be found guilty.

As I wrote on spiked in December, the case raised some important questions. First, it raised the question of how the First Amendment should be understood in the context of social media. Second, it raised the question of how we should define and understand ‘true threats’ when issued online. However, the Supreme Court has failed to address these broad First Amendment questions and has instead limited its judgement to narrow criminal statutes.

In a seven-to-two opinion, penned by Chief Justice Roberts, the court’s ruling ran as follows:

‘Elonis’s conviction… was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct awareness of some wrongdoing”… Having liability turn on whether a “reasonable person” regards the communication as a threat – regardless of what the defendant thinks – “reduces culpability on the all-important element of the crime to negligence”, and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes”… Under these principles, “what [Elonis] thinks” does matter.’

This ruling, which focuses on the statutory details rather than the substantive issues, will now be sent back to the lower courts for a decision on whether Elonis should be retried.

One can’t help but feel that the Supreme Court justices have missed an opportunity here. It’s possible that the sheer length of time (six months) it took the justices to resolve this case suggests they could not reach a majority opinion on the First Amendment question. But still, sooner or later, the court is going to have to address how online speech and threats are handled in a First Amendment framework.

In the meantime, however, this ruling should act as a reminder that we cannot rely on the courts, Supreme or otherwise, to protect and stand up for our free-speech rights. The First Amendment remains an enduring testament to its drafters’ enlightened belief in individual rationalism and agency. But it is our responsibility to maintain the import of those beliefs on a day-to-day basis, especially online, where context and intent can easily be misinterpreted.

The internet has created an unparalleled platform for discourse, debate and the sharing of ideas. But it is a platform that relies on each of us to sort the good from the bad, and the right from the wrong. That is a responsibility each of us should strive to retain as a fundamental individual freedom, online or elsewhere.

Neil Ross is US programme director at spiked.

To enquire about republishing spiked’s content, a right to reply or to request a correction, please contact the managing editor, Viv Regan.

Topics Free Speech


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