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WHEN DOES FACEBOOK BECOME A FEDERAL CRIME?

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The U.S. Supreme Court recently ruled that Facebook users can post their feelings and views without it becoming a federal crime, even if the posts seem threatening in nature.  Although the case does not address First Amendment rights directly, it is a step in the right direction as far as limiting the government’s control over what we say and do.

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In the case of Elonis v. United States, a disgruntled man used Facebook to post self-styled rap lyrics concerning his wife, coworkers and a kindergarten class.  The lyrics contained graphically violent language and imagery towards the targeted people.  Even though Elonis posted a disclaimer that his lyrics were fictitious and didn’t involve real people, those who knew him saw his posts at threatening.  As a result, his boss fired him and his ex-wife got a restraining order against him.   Elonis was eventually arrested and charged with federal crimes for his posts.

Specifically, it is a crime to transmit in interstate commerce “any communication containing any threat…to injure the person of another.”  Elonis went to trial and lost.  He argued that the government should be required to prove that he intended to communicate a “true threat.”  The government’s position was that it didn’t matter if he actually intended for it to be a threat or that he intended to carry out the threat.  They argued that it is threatening behavior if a reasonable person would foresee that the statements could be interpreted as a threat. The Supreme Court had to decide whether the statements constituted “true threats,” meaning that the author intended the message to be threatening, or whether it depended on how a reasonable person would view it.  The “reasonable person’ standard is very broad and unclear and focuses more on the “victim’s” subjective interpretation rather than the real intent of the writer, which could turn many innocent statements into a crime.  The Supreme Court ultimately ruled in Elonis’ favor, holding that just because a person views an online message as a threat doesn’t necessarily mean that the author is guilty of threatening behavior.

This case provides some clarity on when online communication can be considered a crime.  But it doesn’t allow a free pass to go and say whatever we want under the guise of “oh, but I didn’t really mean it.”  Even though the Court ruled in favor of Elonis, this case should be a lesson to us all to be careful what we post on social media.   We need to be mindful of what we say and how people will perceive it.  Elonis argued that he was exercising his First Amendment rights when he posted the lyrics, but this case wasn’t about that.  The First Amendment doesn’t apply to threats.  The question boils down to whether the author was aware of the threatening nature and if so, it might be criminal.  So the next time you want to “let off some steam” by venting over social media, you better think twice before hitting the post button.



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