The U.S. Supreme Court accepted and will rule on the Anthony Elonis case in the Court’s upcoming Fall term. The Elonis case involves a man who was found guilty and sentenced to over three years in prison for posting threats to his wife on Facebook. Because of the Supreme Court’s recent decision on cellphone searches, commentators are anticipating that the Elonis case will make new law on internet social sites and First Amendment free speech. With the way our Constitution is set up, the Supreme Court doesn’t “make” law, it resolves conflicts from lower courts and clarifies issues of constitutional law. In this situation, there are major conflicts in rulings from various States concerning their criminal laws and those of federal courts interpreting federal law. The Elonis case is also about internet (like books, or newspapers, or letters, or radio), each medium is, as Marshall McLuhan says, the message. The Supreme Court has to address the question: Does that matter? Internet social sites are a medium for both conveying political speech and personal “posts.” If there is a line, the Supreme Court is expected to focus on that issue.
The conflicting interpretations from lower courts hinge on what the “speaker” intended, as opposed to what the “hearer” understands. One line of cases hold that a threat is a statement only if the speaker meant to communicate it as a threat to an individual or a group (Watts v U.S.). Other lines of decisions hold that if a reasonable person would see it as a threat then it is not protected speech, regardless of the intent of the speaker. Elonis’s defense is that his threats, some of which are composed in patterns used in rap music, are protected free speech.
This issue has a long history of litigation both in State and Federal courts. One federal opinion arose from a Vietnam War protester who, in front of a protest group said, ”If I’m drafted into the army and they give me a rifle, the first person I’ll put in its sites is the President of the United States.” Is that protected political speech or a threat to kill the President of the United States? How about burning a cross? Is that political speech or a threat against African Americans? How about burning a copy of the Koran? Is that protected speech or should I be criminally prosecuted because a Muslim neighbor of mine perceived this as a threat to himself and his family? Now consider rap music in which the artist goes on about killing police. Is that a threat to police or protected free speech.
The Supreme Court can, and will, decide on what is the question before they give us an answer. What most commentators are saying is that this case will make new law because it involves the Internet.