When Do Facebook Posts Become Criminal Behavior?

By October 1, 2014Thomas Law Firm

The Supreme Court has agreed to hear a case about free speech and social media. They will determine how sites like Facebook fit into the free speech debate in the digital age. More specifically, when threatening comments on social media sites become criminal behavior.

Two federal courts have already ruled that it was unlawful of Anthony Elonis to make comments about killing his wife, an FBI agent, and others on Facebook in 2010. Mr. Elonis states that his posts were merely rap lyrics and a way for him to vent his frustration without actually committing the acts. His ex-wife was extremely afraid for herself and her children.

A major issue being clarified in this case is something called “true threats.” These threats are illegal (not protected under the First Amendment) if a reasonable person could look at the post and consider them to be threatening. Hopefully the high court will clarify on the role of speaker’s intent vs listener’s reaction and how social plays a role.

The last Supreme Court case that dealt with the true threat doctrine was in response to a Virginia law that found cross burning was unconstitutional. The high court ruled that a true threats are “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Since this decision, lower courts have gone back and forth with the debate on intent of the speaker vs evaluation by the listener. The Justice Department has taken the stance that the law must not only prevent real violence by also deter real fear.

There is an ongoing debate on the role of social media and how it fits in to the lives of everyday people. Does a Facebook post that can be seen by the public still count as personal reflection? Does context of the statement carry any weight if a reader interprets the statements negatively? Should comments made on social media be treated differently than other forms of speech? These questions should be answered by the Justices of the Supreme Court

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