A Threatening Intersection of Technology and Free Speech

A Threatening Intersection of Technology and Free Speech

By Carl M. Cannon - December 15, 2014

James Madison, author of the First Amendment, was no Luddite. Madison embraced technology in a most pragmatic way – in his Virginia agricultural fields. “Scientific farming,” he called it. Nonetheless, it’s safe to say that the man who produced the 45 words guaranteeing Americans’ right to free expression—the passage beginning, “Congress shall make no law…”—could not have envisioned cable television, let alone YouTube, Twitter, or a world in which a cheap video made in Southern California could generate riots in Cairo.

So it’s hard to imagine what the Framers would make of a 21st century American’s Facebook rantings about torturing his wife and contemplating committing mass murder at an elementary school. But those are the facts in a First Amendment case the Supreme Court is currently weighing.

“Information wants to be free,” futurist Stewart Brand proclaimed in the mid-1980s, a sentiment that has been cyberspace’s rallying cry since the dawn of the Internet. But “free” is a word with multiple meanings, depending on the context, and in any event, he added this: “Information also wants to be expensive. That tension will not go away.

Certainly, the Framers comprehended the inherent strain between free speech and technological advancement. The notorious Alien and Sedition Acts passed by the Federalists and signed into law by John Adams—and vehemently opposed by Madison and Thomas Jefferson—were prompted in part by late 18th century advances in printing and paper-making. This allowed, among other things, for the easy dissemination of political cartoons and scathing satire.

In the ensuing decades, two themes have remained constant: first, the thorny set of facts invariably involved when judges and elected officials are asked to uphold First Amendment rights. Second, the role played by technological innovation in constantly pushing the boundaries of decent, safe, and constitutionally protected communication.

The latest example comes to the courts thanks to the actions of a crude and misogynistic bully named Anthony D. Elonis. In 2010, Elonis posted a picture on his Facebook page of himself holding a toy knife to the throat of a co-worker in Allentown, Pa. In the caption he wrote, “I wish.” That creeped out his bosses, who promptly fired him. Meanwhile, the messages he was posting about his wife, Tara, who had left him months earlier, were even more disturbing. Elonis posted often about killing her, saying he wouldn’t rest until she was “soaked in blood and dying from all the little cuts.”

Employing a free-form poetry he claims was inspired by rap music, Elonis also put this on his Facebook page:

That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever imagined

And hell hath no fury like a crazy man in a kindergarten class
The only question is … which one?

That chilling rumination brought a visit from two FBI agents. Elonis’ response, at least on Facebook, was to write about slitting the throat of the female agent. Nor did he stop threatening Tara, even after she went to court and secured a restraining order:

Fold up your protective order and put in your pocket.
Is it thick enough to stop a bullet?

By this point, local authorities had heard enough. Elonis, then 27, was arrested, prosecuted, convicted, and sentenced to 44 months in prison.

At trial and during his legal appeals, which have now reached the U.S. Supreme Court, the defendant maintained that (a) he was venting his emotions and not making actual threats; (b) his Facebook postings are clearly imitative of rap and not meant to be taken literally; (c) his musings are, therefore, constitutionally protected free speech.

In recent years, courts have been asked to force Twitter to reveal the identifies of those who post comments under pseudonyms, to decide whether pushing the “like” button on Facebook is protected political speech, and whether singing a song—freely available on YouTube—with menacing lyrics directed at a judge hearing a custody case is safeguarded by the First Amendment protection.

In a friend-of-the-court brief in a case revolving around the proprietorship of tweets sent out by the Occupy movement, the ACLU asserted on behalf of all American citizens “the right to speak freely on the Internet, safe in the knowledge that the government cannot obtain information about our communications or our private information unless law enforcement first satisfies First Amendment scrutiny.”

In their brief to the high court, Elonis’ attorneys neatly summarized the technological ramifications of their case:

The issue is growing in importance as communication online by email and social media has become commonplace, even as the norms and expectations for such communication remain unsettled,” they wrote. “The inherently impersonal nature of online communication makes such messages inherently susceptible to misinterpretation.”

I don’t disagree with that assessment, but it’s an interesting defense. Essentially, what is being argued is that the marvelous new tools of the Information Age have actually made it easier to be misunderstood. That’s at the heart of the contention that social media makes the context of the communication more important than it’s ever been before.

Understanding that we don’t always get the technology we desire—PayPal founder Peter Thiel has quipped, “We wanted flying cars and instead what we got was 140 characters”—during oral arguments in Elonis’ case last week Chief Justice John Roberts seemed to steer the conversation away from distinctions between online and off-line communications. Then again, the Supreme Court has struggled with protecting political speech, while simultaneously maintaining civil order, for the better part of a century—and long before the advent of the Internet. Let’s recall that Oliver Wendell Holmes’ memorable imagery about yelling “fire” in a crowded theater was written in 1919 in a case having nothing to do with fires or theaters. The case concerned the writings of a Socialist Party leader urging Americans to oppose a wartime military draft. Holmes, writing for a unanimous Supreme Court, upheld the conviction, perhaps the most egregious First Amendment travesty in the history of the court.

Half a century later, that ruling was finally eviscerated, but the precedent that relates most closely to the current Facebook case harks back to a 1966 antiwar demonstration in Washington, D.C., when an 18-year-old African-American named Robert Watts told a small group of fellow demonstrators, “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.”

Listening to this tirade was an undercover counterintelligence officer with the U.S. Army. Young Mr. Watts was arrested and convicted of threatening to kill the president. But his remarks were intended neither to frighten the president nor to incite someone else to do so. They caused no harm, in other words, and were not meant to be taken literally. Three years later, the high court ruled as much, throwing out Watts’ conviction on the grounds that they were made in a political context and did not entail “a true threat.”

The court made the right decision, but didn’t bother to define “true threat,” leading it to subsequent legal proceedings to tease out that meaning. In one definition, the one the judge used to instruct Elonis’ jury, was whether a reasonable person would feel threatened by the gory Facebook postings. That made it easy to convict: Tara was, even at trial, still afraid of the man. But a more exacting standard, used in other such cases, is that the speaker intended his words to terrify the target of his wrath. This is a higher hurdle, especially since Elonis testified that he didn’t mean any of it to be taken literally.

Personally, if I’d have been on that jury, I admit that I might have convicted this jerk under either legal standard. As he posted on Facebook, “Revenge is a dish that is best served cold with a delicious side of psychological torture.”

Can five Supreme Court justices look past that? I hope so. Although this litigant is not a guy who has earned the right to be mentioned in the same breath as James Madison, it would be a shame to let this precedent curb the First Amendment for the rest of us.

“Some degree of abuse is inseparable from the proper use of every thing,” Madison wrote, “and in no instance is this more true that in that of the press.” And that would fit on Twitter.

Carl M. Cannon is the Washington Bureau Chief for RealClearPolitics. Reach him on Twitter @CarlCannon.

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