SCOTUS Has Reached A Decision On Facebook Threats

In a game-changing ruling Monday, the Supreme Court ruled that threats made on Facebook are protected under free speech, as long as the perpetrator has no intent to carry them out. In other words, if the threat of violence could be reasonably understood to pose a real danger — in the case of Anthony Elonis, whose case forced the Court's hand, he posted threatening messages on Facebook to his wife and others, often using rap lyrics — then it becomes a criminal issue. However, making a threat over the Internet in itself is technically protected by free speech, the Supreme Court ruled. Basically, you can say what you like on the Internet — as long as you don't really mean it.

The Supreme Court's ruling effectively strikes down previous convictions against Elonis, who had served jail time after his series of threatening messages. Free speech advocates had argued that criminalizing empty threats on the Internet — as Elonis claimed his were — would limit communicating on the Internet in a nonthreatening way, thus restricting free speech. Activists argue that all violent threats need to be taken seriously by the federal government to keep victims of online harassment — particularly women (hey, remember Gamergate?) and victims of domestic violence — safe.

Elonis was convicted back in 2011 for threats against his wife, FBI agents, and a kindergarten class. He was sentenced to 44 months behind bars. According to the New Yorker, his myriad Facebook threats included:

There’s one way to love ya, but a thousand ways to kill ya...

Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined...

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...

By ruling in Elonis' favor, the Supreme Court set the precedent that if a reasonable person could assume that the threat was empty — that's to say, that Elonis meant no harm to the FBI agent when he wrote about "slit[ting] her throat" — then Elonis could not be convicted of a criminal offense.

The ruling comes at a time when internet threats are a dime a dozen, best evidenced by 2014's Gamergate. Gamergate was, and remains, a large-scale online hate group that targeted several high-profile women in gaming with death threats posted to Twitter, Tumblr, Reddit, Facebook, YouTube — you name it, Gamergate threatened someone on that platform. One victim, Zoe Quinn, later testified at a Congressional briefing that the ceaseless harassment had left her life "almost unrecognizable." Another, Anita Sarkeesian, delivered a powerful speech as part of the Sydney Opera House’s 2015 “All About Women” series, noting:

What I couldn’t say is “fuck you.” To the thousands of men who turned their misogyny into a game, a game in which gendered slurs, death and rape threats are weapons used to take down the big bad villain, which in this case is me. My life is not a game. I have been harassed and threatened for going on three years with no end in sight.

Only two of the nine justices argued against Elonis; Clarence Thomas and Antonin Scalia dissented. Here's the full opinion.

It should be noted that this ruling does not make online harassment, like the kind suffered by Sarkeesian and Quinn, among many others, legal per se. The ruling could be better explained as not making violent threats automatically illegal — but any kind of violent threat, whether via social media or letter or in person, remains illegal if it could be reasonably described as being an actual threat.

In the case of Elonis, he argued that because his threats so often included rap lyrics, they pointed more to his being an aspiring rap artist than planing any actual violence. The Supreme Court agreed. "Juries are fully capable of distinguishing between metaphorical expression of strong emotions and statements that have the clear sinister meaning of a threat," the majority justices stated.

Of course, the vast majority of threats made against Gamergate victims ended up being empty threats; more scare tactics intended to dissuade them from the industry than anything else. But for the women whose lives were threatened online every single day, the Supreme Court's distinction between a "real" threat and a "fake" threat wouldn't have brought them much comfort — and it doesn't do a whole lot to protect them in the future.