Trolling Or Threatening?

That’s roughly the question at the heart of a new First Amendment case the Supreme Court is taking up in its October term:

The case, Elonis v. United States, which we’ve previously covered in some detail, has reached the nation’s high court on appeal, after the Third Circuit Court of Appeals found that defendant Anthony Elonis’ 2010 Facebook rants mentioning attacks on an elementary school, his estranged wife, and even law enforcement, constituted a “true threat” under First Amendment precedent. As such, the court upheld Elonis’ sentence and conviction. In his petition to the Supreme Court, Elonis’ counsel said the issue boils down to “whether a person can be convicted of the felony ‘speech crime’ of making a threat only if he subjectively intended to threaten another person or whether instead he can be convicted if he negligently misjudges how his words will be construed and a ‘reasonable person’ would deem them a threat.”

For example, in one such Facebook posting, about which Elonis has since argued that he lacked criminal intent, he wrote: “Do you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say.”

Lithwick’s take:

This case is not only crucially important in that it will force the court to clarify its own “true threats” doctrine and finally apply it to social media to determine whether—as Justice Stephen Breyer has suggested—the whole world is a crowded theater.

But perhaps it’s even more important in pushing the conversation about law enforcement, prosecution, and threats to include a much more sophisticated understanding of the ways in which the Internet is not just a rally or a letter. As Amanda Hess has explained so powerfully, women experience threats on social media in ways that can have crippling economic and psychological effects. At the margins, this is a case about the line between first amendment performance art, fantasy violence, real threats—and real fear. In a world in which men and women find it nearly impossible to agree on what’s an idle threat and what’s a legitimate one, it’s also a case about where that line lies, or whether there can be one.

Alex Goldman ponders how the Internet has changed the way we interpret threatening speech:

The internet has, in a strange way, diluted the power of the death threat. In more heated, less moderated corners of the internet, death threats are as natural as breathing. While threats against the President tend to be investigated seriously, and depending on the venue, they can land people in disproportionate trouble, death threats have sort of become part of internet parlance. Don’t like the my political views? I’ll kill you. Don’t like my favorite sports team? I’ll kill you. Don’t like the latest DLC for Fallout 3? I’ll kill you. For better or worse, the context of a death threat is often used to gauge how seriously it should be taken.