Supreme Court ruling over First Amendment social media case

Does malice on Facebook constitute threat or should it be protected under The First Amendment?

Anthony Elonis of Pennsylvania claims that the threats to his estranged wife he posted on his Facebook profile were merely a crude expression of spontaneity and that they are protected by his right to freedom of speech under the First Amendment. In June 2010 Elonis' wife left him and took their two children. Sometime after he was fired for a number of sexual harassment charges.

About his ex-wife he wrote a number of posts on Facebook including: "I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts" and other gruesome and graphic statements. Following a restraining order granted against him by his ex-wife he then posted: "I’ve got enough explosives to take care of the state police and the sheriff's department” and “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 ... The only question is ... which one?”

He was visited by a female officer following a barrage of similar posts directed at his ex-wife and ex-colleagues to which responded again on his profile: "Pull my knife, flick my wrist, and slit her throat Leave her bleedin’ from her jugular in the arms of her partner.”

He was sentenced to three and a half years in prison for five counts of threatening to injure another. The Appeal Court upheld the decision. The Supreme Court is now deciding whether or not Elonis was merely exercising his right to freedom of speech or whether his comments constitute a 'true threat.' It's not that simple though. This is the first time abuse on social media has come under the jurisdiction of the Supreme Court and so will set a precedent.

Elonis believes his comments were subjective and argues he was expressing himself in a similar way to rappers such as Eminem saying 'they were therapeutic, a way to help me deal with the pain.'

The government argues that if the comments would be considered threatening by an objective person, then they should not be protected under the First Amendment.

If Elonis had sent his messages to his ex-wife in a letter, addressed to her - clearly they would be considered a threat. If however, he had scribbled them down in his personal diary which was kept in his home, his ex-wife could not consider them a threat as she would more than likely be unaware of them. The internet, and particularly social media, constitute a grey area of context. Writing a post on your personal profile can be interpreted in all sorts of ways depending on the context and who is reading. Imagine bumping into your aunty and having a good old fashioned whinge about the weather, money and your job. You feel better offloading your gripes then see on Facebook later that day she has written 'We all have so much to be grateful for.' You suspect it is a dig at you but you don't have the whole context. She may well have agreed with you and written it in an attempt to cheer herself up. Anyone else reading it will wonder if something else is upsetting her and others may wonder if she came into a windfall.

The nuances of directing thoughts and messages across social media such as Facebook posts are very hard to pin down.

The nine judges who sit on the Supreme Court do not have too many active Facebook profiles between them which suggests their depth of understanding of the context of communication across the social media platform may be rudimentary.

This is the first time The Supreme Court will make a ruling of this kind. Are comments on social media deemed to be true threats or zealously expressed views which, however outlandish, should still be protected by the First Amendment?

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