Are incendiary threats made on Facebook protected by First Amendment?
posted at 12:25 pm on October 21, 2011 by Howard Portnoy
Falsely shouting “fire” in a crowded theater is not protected by the First Amendment. But what about shouting “fire” on Facebook?
That in a nutshell is a case currently before a federal jury in Pennsylvania. The peers of a former theme park operations supervisor are charged with determining whether threats he posted on his Facebook page are protected by his First Amendment rights.
The case, which began last Monday, centers on the antics of Anthony D. Elonis, who in the space two months in 2010 lost his job and his marriage.
The Philadelphia Inquirer website philly.com reports:
Elonis took to venting his rage with threats on his Facebook page. His postings, often in the form of rap lyrics, do not make pleasant reading.
Among his postings are this one, directed at his wife, who sought a restraining order after walking out on him: “Fold up your PFA [protection-from-abuse order] and put it in your pocket. Is it thick enough to stop a bullet?”
Of his former employer, Dorney Park and Wildwater Kingdom, he wrote: “Someone once told me that I was a firecracker. Nah, I’m a nuclear bomb and Dorney park just [expletive] with the timer.”
And then there’s this gem:
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.
Since Elonis’ rants were posted on a public page, anyone could freely access them. Among those who did were the FBI, who dispatched an agent to his home.
The centerpiece of Elonis’ defense is context. His attorney, Benjamin B. Cooper, told the jury during opening remarks, “It’s a question of the circumstances. My client was under a lot of duress.” In addition, Elonis framed his postings as fictional, calling them “raps,” which Cooper argues is a “disclaimer” to readers.
For her part, Assistant U.S. Attorney Sherri A. Stephan will need to prove that Elonis’ threats were what the law calls “true threats,” defined by the Supreme Court in a 2003 ruling as
those 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.
An opinion written by then-Justice Sandra Day O’Connor clarified that a speaker
need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur….
Stephan said she would be calling Elonis’ soon-to-be ex-wife and former boss, who will both testify to have been genuinely in fear of their safety.
The case, meantime, is the third involving the social network to arise in the last three months. Just this week, a New Jersey teacher came under fire for posting anti-homosexual sentiments on her Facebook page. A similar case occurred in August and involved a Florida teacher’s responding unfavorably on Facebook to New York’s gay marriage law.
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