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Monday, December 01, 2014

Elonis v. United States

I'm looking forward to the Supreme Court's ruling in Elonis v. United States, though I suspect that the Court will not address my primary raison d'excitation.

Elonis was convicted of threatening his wife by posting repulsive texts on his Facebook page.  While I'm not convinced that there was sufficient evidence to convict (the posts were ambiguous as to the threat), let's assume there was.  The issue for the Court is whether the First Amendment requires proof of a defendant's subjective intent to threaten or whether it is enough that a "reasonable person" would feel threatened.  I suspect that the First Amendment requires subjective intent, but I digress.  More after the jump . . .

I'm hoping that the Court will address the issue of Computer Mediated Communication (CMC), which I discussed in an article a while back, called "Terrorism Online: Is Speech the Same as It Ever Was?"

The ACLU's amicus brief in Elonis picked up on the phenomenon of online speech and how it might differ from "real-world" speech.  It noted that

"Today, a significant amount of speech on political, social, and other issues occurs online, and is often abbreviated, idiosyncratic, decontextualized, and ambiguous," (p. 6), and that "online communications can easily become decontextualized by third parties . . . such decontextualization circumvents any effort by a speaker to provide additional context, outside the plain words of the statement, that would make the non-threatening intent of the statement clear.  Different online communication fora will often develop their own conventions for expressing emotion and sarcasm. See Jorge Peña & Jeffrey T. Hancock, An Analysis of Socioemotional and Task Communication in Online Multiplayer Video Games, 33 Comm. Res. 92, 98 (2006) (“[Computer-mediated communication] participants tend to express themselves employing collective conventions, such as a shared jargon and argot . . . . CMC conventions can be considered as surrogates for nonverbal communication and can be employed to express emotions, moods, humor, sarcasm, and irony.”). Even within a single online environment, such as a multiplayer online game, sub-communities will form and develop their own communication styles. See Dmitri Williams et al., From Tree House to Barracks: The Social Life of Guilds in World of Warcraft, 1 Games & Culture 338, 357 (2006). Statements made to a close-knit community could easily be misinterpreted when taken out of context or read by a newcomer who is not yet familiar with the conventions or practices of that community." (pp. 25-26)

In my article, I discussed how CMC might alter how the meaning of speech is understood in the terrorism recruitment context.  But for the Elonis case, four of my observations seem relevant:

First, CMC may make people feel more disinhibited, and thus tend toward more extreme speech, but it also might allow them to more freely speak their minds.  As for Elonis, his CMC speech might indicate a more extreme intent than his genuine subjective intent, or it might have revealed what he was really thinking.

Second, the anonymity of online speaking might allow people to say extreme things without fear of repercussion, but there is little evidence that such anonymity will lead to people actually adopting extreme views.  So by saying what he said online, there's little evidence that Elonis might convince himself to actually harm his wife.

Third, CMC is very inward looking and is likely to be directed at the self, not others.  Indeed, this is exactly what Elonis argues; that he's an aspiring rapper, and his texts were an expression of himself, not directed at his wife or anyone else.

Fourth, the geographic reach of CMC tends to decrease the effectiveness of a message conveyed online.  Thus, a threatening comment said online may be less likely to result in a "reasonable person" feeling threatened.

I hope that the Supreme Court will get into a discussion of how online speech may be fundamentally different than "real-world" speech, and thus how First Amendment jurisprudence may have to be adapted to that context.  But I imagine that CMC is too new and too uncertain (indeed, CMC scholars acknowledge the newness of their field) for the Justices to confront. 

Posted by Steven R. Morrison on December 1, 2014 at 11:41 AM | Permalink


ALL RIGHTS RESERVED (Including Freedom of Speech and Association). Without Prejudice UCC 1-207/UCC 1-308. ANY and ALL Interaction with Officers, Employees, Agents, or Representatives of the UNITED STATES CORPORATE GOVERNMENT does not infer or imply consent, agreement, or contract. When my Rights are Violated - I WILL TORT YOU! (Trezevant v. City of Tampa) You have been warned. If you wish to keep your Bonds and BAR Cards - do not step on my RIGHTS!

Posted by: Coy Coleman | Dec 2, 2014 12:41:26 AM

Thanks for your remarks. The first comment was made in error.

Posted by: Joe | Dec 1, 2014 5:42:09 PM


Posted by: Joe | Dec 1, 2014 5:40:55 PM

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