Monday, November 24, 2014

SCOTUS to hear case on when metaphorical expression online can be taken as a criminal threat (case of Anthony Elonis)


Robert Barnes has a front page story Monday morning, November 24, 2014, in The Washington Post, on the upcoming Supreme Court oral arguments on the Anthony Elonis case (Elonis v. U.S., apparently to be heard Monday, December 1 in oral arguments). The story title is “A social media test for justices; Facebook rants spawn speech case; Was PA man venting or making real threats?”, link here.   I see that I had discussed this case previously here June 8, 2014.

The SCOTUS blog has links to all of the briefs here.  Wikipedia has a brief history of the conviction of Elonis in PA, resulting in 44 months in federal prison, here. The applicable statue was 18 USC 875(c).

A major issue in the case is whether metaphorical statements (in this case, sometimes based on parody by “Whitest Kids U’ Know”) online should be taken as threats.  The amicus brief says that “this case presents an ideal opportunity for this Court to determine whether its current True Threats Doctrine is compatible with contemporary modes of communication.”  Also, “Internet users may give vent to emotions on which they have no intention of acting, memorializing expressions of momentary anger.” 


There’s another related area, as to whether statements of potential threats made to mental health professionals are confidential, or must be related to law enforcement.  Back in 1964, when I was undergoing therapy, a psychiatrist told me that all communication was absolutely confidential.  Today, the situation has obviously changed, given all the history of rampages (Holmes in particular).  One could expect that to be litigated eventually.


While the news story emphasizes the danger to female spouses and children in domestic violence situation, the other very obvious place where this case matters is schools.  Often, school administrators feel that they are in a position of taking zero chances if any sort of threat is implied.
   
This has often expanded to social media posted outside of school.  In the June 8 posting, I mentioned an incident that occurred in 2005 when I was substitute teaching.  I had posted a fiction screenplay treatment on a flat site (not on a social networking site as such) in which an older male substitute teacher arguably resembling me gives in to advances to a precocious student and is arrested at school, and dies in prison.  There are some other complicating factors in the story (the student had used a defibrillator – not quite in common use in schools in 2005 – to revive the teacher when “teaching” PE, and the student performs the teacher’s music posthumously, and there was no “actual sex” itself, just inappropriate lower level contact.  Nevertheless, this story was apparently (after apparently being found by a student or teacher after another teacher had in fact been arrested at the school in an unrelated incident) viewed as an indication that I might have a “propensity” (in parallel to the language of the old DADT law) to give in to an advance and that I could create a risk.  This was never litigated.  (Maybe there were competing “strategies”, to put it mildly.) I actually got the sub job back eventually and left for other reasons, so I would have no clear “standing”.  But this Elonis case might give an indication on how the Supreme Court feels about “implicit content” in general. Part of my situation would have involved whether fiction can be interpreted as a "threat" (Bindrim v. Miller in California, 1979), as demonstrated in a film about a Canadian case in schools, "Blackbird" (reviewed on Movies blog, Nov. 2, 2014).

While the case refers to Facebook, the ideas would apply to any web or forum posting, to email, tweets, text messages, or other social networks like Myspace, which is older.  Would it apply to Snapchat? The idea that  posting might be found by interested others through search engines and not just by “friends” or “followers” would seem to be important in my situation.  Dr. Phil had covered some of this in a program called “Internet Mistakes”, on Myspace, reviewed on the TV Blog Jan. 15, 2008.  

There are cases somewhat related to Elonis in Florida (mentioned here June 8) and Texas (where a teenager Justin Carter was prosecuted for Facebook "threats", Matt McCann's story in the Austin Chronicle, Feb. 28, 2014 here (Internet safety blog, July 3, 2013).

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