OPED: Controversial free speech case could have significant repercussions

By Cliff Djajapranata,
Bluedevilhub.com Staff–

It seems that the First Amendment is continuously under assault these days, but sometimes the line can be blurred between threats and legitimate speech.

After Anthony Elonis’ wife left him and he was fired from his job, Elonis began posting graphic and violent messages on his Facebook page directed at his wife. In one post, Elonis suggested that their son should dress up as a matricide with his estranged wife’s head on a stick.

Elonis was convicted of interstate communications with a threat to injure another person and is in the process of having his case heard by the Supreme Court.

Elonis has claimed that he never intended to inflict bodily harm on his wife, saying that rap lyrics inspired his disturbing posts.

The question being asked is whether Elonis’ actions constitute a true threat: is a true threat one that a reasonable person would find threatening, or does a true threat require the subjective intent to threaten?

While Elonis’ actions are morally bankrupt and offensive, the Supreme Court must overturn Elonis’ conviction in order to safeguard free speech and the more noble purpose behind the First Amendment.

A crowd’s reaction is among the main factors in determining whether a statement can be considered a true threat. However, in the age of social media, a reaction to an online post cannot be accurately gauged because of the disparity of opinion between those who do and do not respond.

“The written (or other verifiable) reaction may be skewed and unrepresentative of the audience, because only the most engaged and motivated recipients are likely to invest the effort to respond,” a brief filed by the Student Press Law Center said.

Statements made online can easily be misinterpreted as an audience does not have the same social cues as it would have if the same statements were made in person.

“Today, a significant amount of speech on political, social, and other issues occurs online, and is often abbreviated, idiosyncratic, decontextualized, and ambiguous,” the American Civil Liberties Union’s brief said. “As such, it is susceptible to multiple interpretations, making a subjective intent requirement particularly necessary to ensure that protected online speech is neither punished nor chilled.”

The Framers designed the First Amendment to protect all speech in order to allow the people to feel safe in expressing any view, no matter how radical. The ramifications this case could have for future free speech cases have drawn out unlikely special interest groups, including the People for the Ethical Treatment of Animals.

“Requiring only an objective ‘reasonable person’ inquiry in order to bring speech outside of the protection of the First Amendment does not adequately police that boundary,” a brief filed by PETA said.

“Rather, such a rule would allow majority groups or the Government to use the criminal threats statute as a sword to silence opposition on issues where dissenting voices are critical.”

If a dominant faction is able to persecute a minority on the basis of it feeling threatened, then minority factions will be less inclined to speak up— tyranny of the majority would ensue, a natural tendency of a direct democracy that the Framers specifically protected against with a representative democracy with checks and balances.

While this particular case will initially make one think that only a reasonable person’s opinion is what matters in determining the validity of a true threat, other less questionable cases can be affected by the Court’s verdict on this case.

If a pro-choice advocate were to post a provocative Facebook status regarding abortion, could a pro-life supporter or a pregnant woman deem such a message as threatening to the life of an unborn child?

A decision to not overturn Elonis’ conviction could very well mean a green light for litigious Americans to condemn minorities all in the name of political correctness.

Elonis v. United States can very well decide the future of free speech, and it is important that we do not lose sight of the greater purpose of the First Amendment while dealing with this particularly controversial case.