Supreme Court: Violent Threats Posted Online Are Not (Necessarily) Threats


eminem lyrics supreme court


The Supreme Court ruled on Monday to overturn a Pennsylvania man’s conviction for violent threats he posted on Facebook against his estranged wife in the form of rap lyrics. The case marks the first time the Court has considered questions of free speech on social media.


The question boiled down to whether threats made on social media sites like Facebook can reflect intent to do true harm. Ultimately the court ruled in favor for the defendant because the prosecution was unable to prove that the threats were malicious beyond the fact that most reasonable people would consider them threatening. Taken alone, the threats could not prove the defendant’s state of mind–that is, whether he knew (intent) the fear he would cause.  


The Story Behind the Case

Anthony Elonis, a Pennsylvania man who goes by the persona “Tone Dougie,” was convicted of violating a federal threat statute after writing violent lyrics on his Facebook page. While many of the lyrics were directed at his ex-wife, who had recently left him, some of the supposed threats took aim at the community, including mentions of school shootings at any of all of the elementary schools within a ten-mile radius. Among other threats to kill his ex-wife, Elonis mentioned wanting a Halloween costume that would feature her “head on a stick.” At times he also remarked publicly that the statements were “art” and “therapy.” His ex-wife stated that she felt threatened, like she was being “stalked.” Elonis was sentenced to 44 months in prison in 2011.


Chief Justice Roberts called Elonis’s words “crude, degrading, and violent.” But on the question of whether they were worthy of his conviction, the court considered lyrics by the rapper Eminem, whom Elonis stated to be an influence, whose songs often feature violent acts toward his wife, Kim Mathers. Roberts quoted lyrics from Eminem’s song “‘97 Bonnie and Clyde”: “DaDa made a nice bed for Mommy at the bottom of a lake.” Ultimately, the court decided that such statements are not enough evidence to prove intent–not intent to do harm, but to cause fear–a new requirement that must be considered with the threat statute under which Elonis was convicted.


Significance for Social

“How does one prove what’s in somebody else’s mind?” Justice Ruth Bader Ginsburg asked. While the ruling has much to do with the workings of the First Amendment, its crossover into social media is notable. Who are we online? Elonis posted under a persona, for example, and others may have interpreted his violent lyrics as controversial promotion for his music.

The ruling also dovetails with recent considerations–and demand–for more protections against harassers online on messageboards like Reddit and Twitter. In Wired’s analysis, Danielle Citron, professor of law at University of Maryland and the author of Hate Crimes in Cyberspace notes that the ruling “upends how courts have ruled on these issues in the past and leaves many questions unanswered as to how they should proceed in the future.” The difference between proving that a “reasonable” person would find the language threatening vs. proving intent is a “higher standard.”


On the other hand, the focus on malicious intent may in fact bring some of the Internet’s most noxious trolls to task. “The one good thing,” Citron says, “is the Elonis case has brought the issue of online abuse and domestic abuse into the conversation and consciousness in a way that’s been immovable before.”


Image credit: Shutterstock

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In South Carolina, using Facebook from prison is worse than committing a violent crime


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Hundreds of prisoners in South Carolina have been sent to solitary confinement for visiting Facebook, which is considered “on par with murder, rape, rioting, escape and hostage-taking” by a rule introduced in 2012, the Electronic Frontier Foundation says.

Solitary confinement is perhaps the cruelest punishment allowed by the American legal system. (At least for prisoners in the United States — “detainees” in Guantanamo have endured crueler treatment.) And it’s becoming increasingly controversial, too.

Here’s what NPR said in a story about the debate over solitary confinement in 2013:

As prisoners testify about suicidal depression, self-mutilation, lethargy, hallucinations and other ills, more attention is being paid to inmates who have lived through the extreme, often uncertain isolation.

A prisoner in Texas offered a similar anecdote to the American Civil Liberties Union, which noted in its blog post that the description comes from a prison in Texas instead of “from some dystopian dictatorship,” for an ACLU report published on February 9:

Every day from dusk to dawn there’s noise, banging, clanking, yelling, screaming. Everyday someone is getting hurt or hurting themselves. Everyday there’s fire and floods and complete chaos & hate…Every day is a challenge here. A challenge against insanity.

This is the hell to which hundreds of prisoners in South Carolina have been sent for using Facebook. And because the rule about accessing social networks is so strict, an inmate who visits Facebook can end up with an unimaginable sentence, as EFF notes:

The sentences are so long because SCDC issues a separate Level 1 violation for each day that an inmate accesses a social network. An inmate who posts five status updates over five days, would receive five separate Level 1 violations, while an inmate who posted 100 updates in one day would receive only one.

In other words, if a South Carolina inmate caused a riot, took three hostages, murdered them, stole their clothes, and then escaped, he could still wind up with fewer Level 1 offenses than an inmate who updated Facebook every day for two weeks.

Facebook doesn’t come out of the EFF’s report looking great, either. The company is known to take down inmates’ accounts at a warden’s request, often without requiring them to prove the account was abused. As Slate notes in its report on the censorship:

[Facebook] claims it doesn’t suspend prisoners’ Facebook pages for violating prison regulations, but rather for violating Facebook’s Terms of Service by giving their password to somebody else. But the EFF uncovered at least one instance in which Facebook suspended a prisoner’s account explicitly ‘for not following inmate regulations.’

The result: A system through which prisoners can be subjected to the cruelest treatment allowed on American soil while their holders are able to censor them by appealing to a company which doesn’t appear to care about inmates’ freedoms.

Still think Mark Zuckerberg isn’t full of it?

[illustration by Hallie Bateman]