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So you had a rough day at school and you post about it on Facebook. Since you’re not in the right mindset at this moment you post something that some people could interpret as a threat, even though you never intended it to come off that way. The power that social media has garnered over the years is unbelievable and while there are countless ways it makes life easier, one way it makes life harder has the Supreme Court re-examining free speech in regards to social media.
In an article by the Washington Post, the issue of whether threatening comments posted on social media should be able to be prosecuted. This issue cannot be better portrayed than in cases regarding Mr. Anthony Elonis.
Elonis, who had been just been served a restraining order from his ex-wife a week earlier, went to Facebook to vent his frustration, posting the following: “Fold up your PFA [protection-from-abuse order] and put it in your pocket. Is it thick enough to stop a bullet?”
This message was delivered in a prose style which resembled violent and misogynistic lyrics of artists he liked.
This wasn’t the first time his Facebook posts have gotten him into trouble. In 2010, one of his co-workers at the time misinterpreted a post oh Elonis’ as a threat, which prompted the following response from Elonis:
“Someone once told me that I was a firecracker. Nah, I’m a nuclear bomb and Dorney Park just f----- with the timer.”
In the Supreme Court case, attorney John Elwood noted that the above posting was “followed by an emoticon of a face with its tongue sticking out to indicate ‘jest.’ ”
While The U.S. Court of Appeals for the 3rd Circuit in Philadelphia upheld Elonis’s conviction, (where he served more than three years of a 44-month sentence before his release from prison), the Supreme Court has never given a clear answer as to whether intent must be proved.
The language that is conveyed in many of his posts could be compared to the same kind that has won rappers like his hero, Eminem, multiple Grammys.
So what’s the problem then?
The problem is that it is often hard to determine whether a comment is made in jest or is made in a serious manner as these often lack context. There is no way to tell whether a person is serious or joking, threatening or hyperbolic.
Only time will tell how protected our speech is when on social media. Oral Arguments for Elonis v. U.S began December 1st.