The first amendment declares that “Congress shall make no law . . . abridging the freedom of speech,” and the Supreme Court affirmed in 1964 a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” But neither the 1791 Bill of Rights nor the 1964 Court could have envisioned Facebook.
The Court heard arguments this week in the case of Elonis v. United States, which tests the limits of free speech in the age of social media. Anthony Elonis was convicted for breaking a law that prohibits threats of violence. Elonis posted rants on Facebook– in the form of rap lyrics – saying he wanted to murder his estranged wife.
The case may hinge on whether Elonis’ were “true threats.”
Elonis’ attorneys argued that he was just venting his frustrations, as people often do on Facebook. The emergence of social media has revolutionized and enhanced how Americans interact,” attorneys wrote in a brief supporting his appeal, “but users often can’t define their audience and many communications can be misunderstood.”
Among those supporting the government’s position are some who fear allowing this kind of speech on social media could set back efforts to combat domestic violence. “I'm quite concerned about what ripple impact this may have on other statutes and other prosecutions if we have to somehow get into the mind of an abuser," said the vice president of the National Network to End Domestic Violence.
Defining the limits of free speech is not a new challenge. Just a few years after the Bill of Rights was ratified, Federalists pushed through Congress the Sedition Act, which made it a crime to write, print, or say “any false, scandalous, and malicious” statements against the government and its officials. But the Sedition Act was designed to squelch political speech more than personal threats.
Prior to the Civil War, many states restricted free speech, not only of enslaved people but also of abolitionists. In some southern states, mail was censored to prevent abolitionist materials from being delivered. In the late nineteenth century, some business leaders were granted injunctions prohibiting unions from picketing, while labor leaders defended their actions as free speech. In all these cases, the justifications for limiting free speech was that it could lead to violence.
In 1942, the Supreme Court ruled that “fighting words” . . . “have a direct tendency to cause acts of violence” and are not protected speech. But the Court was referring to words spoken face-to-face, not posted on Facebook. A decision in the Elonis case is expected early next year.