Earlier this week, the U.S. Supreme Court released its ruling on the first social media free speech case.
Anthony Elonis was previously convicted for violating a federal law for posting threatening messages on his own Facebook page. The court that convicted him did so based on the negligence standard, which is whether a reasonable person would interpret his statements as threats.
The Supreme Court ruled that the lower court used the wrong standard in making its decision. A court can’t use the reasonable person standard to decide cases like this – it has to be higher standard than that.
So what happens now? The Supreme Court sent the Elonis case back down to the lower court. The lower court will have to decide whether it should apply the recklessness standard or whether it should examine Elonis’ intent behind the posts in question.
What does this mean for other cases, perhaps those involving domestic violence or cyber harassment? We’ll see. All we know now is that the court has to apply a higher standard than simply asking whether a reasonable person who interpret a statement as a threatening. We will have to wait and see what standard will ultimately apply.
Do I think the Supreme Court made the right decision? Yes. Words are clumsy beasts, especially on social media where we deal with words without inflection and non-verbal cues to decipher what the speaker is saying. I don’t want to see people punished for being inarticulate when exercising their First Amendment right to free speech. We need to examine the statement in the context in which it was made when determining whether a statement violates a criminal law.
As always, think before you post. Don’t use this decision as a license to post whatever you want online. You can face serious repercussions criminally, civilly, and socially for what you post on the internet. If you want to read more about this situation, I highly recommend a post written by my fellow legal eagle, Mitch Jackson. If you’re looking for a resource about internet and social media law, please check out my book The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.