Will verdict of US online freedom of speech case have an effect globally?

“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

Is that a spontaneous, angry rap on Facebook, or a menacing and intimidating threat?

In a case that could reshape the boundaries of social media commentary, US supreme court justices will give an opinion this year on that Facebook post and others made by Anthony Elonis, a former amusement park employee.

In Elonis v United States – widely seen as the first formal test of online freedom of speech in the country that, unlike most of the rest of the world, provides it constitutional protections – justices will consider the point at which a threat made on social media should be deemed credible, rather than a harmless rant or a form of artistic expression.

With international attention increasingly focused on threatening language in social media posts, the case has drawn supporters on both sides of the argument. Victims groups say online threats are every bit as fear-inducing as verbal or written threats. Advocates of free speech say allowing Elonis’s conviction to stand will have a chilling effect on online discussion and could threaten artistic works and satirical writing.

The background to the case is that, in 2010, Elonis posted repeatedly about killing his ex-wife. He also made comments about finding a school and gunning down kindergarten children, and slitting the throat of a female FBI agent sent to interview him after the posts raised concern.

When his wife obtained a protection order against him, he posted: “Fold up your protection from abuse order and put it in your pocket. Is it thick enough to stop a bullet?”

The following day, he posted: “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.”

After the FBI agent visited his home, he posted: “Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat.”

In a federal court in 2011, Elonis was convicted on five counts of interstate communication of illegal threats and sentenced to 44 months in prison. He appealed the case all the way to the Supreme Court.

In arguments heard at the start of December, Elonis’s attorney, John Elwood, said that the key issue to consider was not the words, but the context of the posts and whether Elonis actually intended harm.

Elwood argues that his client was venting his emotions in a dramatic way. In the past, Elonis had posted rap lyrics on Facebook under a pseudonym.And, said Elwood, Elonis noted on his Facebook page that he was exercising his constitutional right to free speech by airing such opinions.

Artists such as Eminem regularly rapped about violent fantasies, Elwood said. This line of defence had supreme court chief justice John Roberts reciting Eminem lyrics – probably a first for the top court in the US.

Roberts wanted a government lawyer to explain whether, in his opinion, Eminem could be prosecuted for his song ’97 Bonnie and Clyde, in which the narrator considers drowning his partner.

The justices’ questions to the defence at the hearing suggested they will not be inclined toward the argument that online speech is entitled to greater leeway when interpreting what constitutes a threat.

The court has in the past determined that the right to freedom of speech does not cover “true threats”, but it has stated these must be differentiated from “sharp attacks” or “political hyperbole”.

Elonis’s lawyers wrote in their original petition to the supreme court that “[T]he inherently impersonal nature of online communication makes such messages inherently susceptible to misinterpretation.”

Several of the justices indicated that they did not buy the argument that a threatening rant could be dismissed by the claim that “it’s therapeutic or it’s art,” as chief justice Roberts said. And justice Ruth Bader Ginsberg wondered: “How does one prove what’s in somebody else’s mind?”

Which way will the case go? Some commentators fear new limits on the right to freedom of speech, or, if the conviction is overturned, an alarming new era in which almost anything will be allowed in online public forums, no matter how intimidating.

Others express doubt that much will change if the court allows the conviction to stand. Justices could argue that the specific context of Elonis’s comments, which continued after a protection order was granted to his spouse, sets it apart from the lyrics of a professional, albeit controversial, rap artist.

Under such a contextual interpretation, controversial artworks or works of satire would also likely be exempt from being seen as “threats”.

Digital activity

“In recent decisions, the US supreme court has shown itself to be very aware of the significance of digital activity, as being part of, and not different to, people’s rights in the US under the constitution. What people do online is an extension of the rest of their life,” he says.

Perhaps the case – which, importantly, has a specific context in which artistic expression is being used as a defence – was seen by justices as an opportunity to better define the limits of artistic expression, he says. This could give professional artists greater freedom for controversial work.

Might the court’s decision in the US affect how online language is interpreted in Ireland? The issue of online harassment “is very much live in Ireland”, McGarr says, with a recent Oireachtas report on the topic, and a consultation paper on the subject from the Law Reform Commission currently open for public comment.

McGarr says the US case is unlikely to have a specific Irish effect. First off, contrary to what many Irish people believe, “Ireland has no guarantee of freedom of speech in the way the US has. We have a constitutional ‘freedom of expression’, but this has to be balanced against other elements of the Irish Constitution”.

In addition, Irish law currently considers online threats to fall under the category of harassment and, in some contexts, they could be considered an actual assault, as “an assault is defined in terms of making people believe they in imminent danger” and not just an actual physical assault.

Under Irish law, a court could demand online threats be taken down from a social media site, and companies with operations here – which includes many global social media and internet companies – tend to comply with such orders.

Thus, a case such as Elonis’s would be unlikely to ever come before a top court here.

Nevertheless, the US supreme court’s decision will be watched with interest in “the wider public climate”, he says.

“If we take it as given that the US is a leading proponent of free speech, you might find that the case will have an effect globally, over time.”