When do our online actions fully migrate from the digital world to our physical one? It’s not an academic question, because so much of what we do online already impacts our lives offline, but it’s one that is only going to become more important as we shift more and more of our interactions, conversations and activities online and away from the desert of the real.
The Supreme court agreed Monday to take a case involving Anthony Elonis, a Pennsylvania man who was sentenced to prison for posting violent rants online that threatened his wife and law enforcement officials, among others. Here are the facts of Elonis v. U.S., as reported by Robert Barnes:
Elonis was 27, estranged from his wife and just fired from his job at an amusement park when he posted violent images and threatening language on his Facebook page. One was a photo of him at the park in a Halloween costume and holding a toy knife to a co-worker’s throat. “I wish,” he wrote.
He also mimicked a comedy troupe’s routine about what constituted a threat.
“Did you know that it’s illegal for me to say I want to kill my wife?” Elonis wrote. “Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife.”
He had also posted about attacking an elementary school and, after an FBI agent came to his house to discuss his posts, Elonis posted about resisting the urge to “slit her throat.” (Elonis’s attorneys are arguing that his comments were free speech and not specific threats.)
This is colloquially known as “the Facebook case,” because it stems from posts Elonis wrote on Facebook, but that’s a synecdoche belying the larger issues at hand: Facebook, in this case, can stand in for any social network as well as every other online platform where a person could express any opinion for other people to see. The case offers an opportunity to see the country’s highest court weigh in on how we should interpret some of our least-restrained commentary.
And this speaks to How We Communicate Now. Many people construct identities online, personas that they try to mold in some preferred image, ultimately creating a self that exists as an outlet, a tool, a hobby, a megaphone or whatever else they want. But people throw this self into a vortex of trolls and bots and F!RST!!1! and harassment and song lyrics and hedgehog GIFs, knowing full well that intention and tone often vanish as this self passes from our reality and into someone else’s. This isn’t new, but it is becoming more pervasive as our digital and physical selves overlap more and more.
This case will allow the Supreme Court to determine whether “the nature of the medium” affects how a threat is analyzed, according to a brief submitted by three groups dedicated to issues of free speech and free expression (the Thomas Jefferson Center for the Protection of Free Expression, the Marion B. Brechner First Amendment Project and the Pennsylvania Center for the First Amendment).
“If context really is a key variable in determining the point at which speech loses First Amendment protection … then lower courts urgently need this Court’s guidance on how the context of online social media affects the true threats analysis,” the groups wrote in the brief.
The new(ish) landscape online offers a radically different context through which to view threats. No longer are known, identifiable figures expressing something publicly; now, people “exercise near-complete control over their persona,” regularly adopting usernames that cloud their identities, as the groups argued in their brief.
Again, the notion of using pseudonyms online is not new, but it’s a massively different playing field because the sheer level of participation has skyrocketed. Between 2000 and 2014, the percentage of American adults who use the Internet nearly doubled (rising to 87 percent from 46 percent) (so, yes, 13 percent of American adults say they don’t use the Internet). In 2000, concerns about anonymity and speech online were perfectly valid for the half of Americans who used the Internet; in 2014, concerns about online behavior and interactions are deeply important considering how much information we put online and the fact that we carry the Internet around in our pockets and purses.
(Surveys suggest that most people have not encountered the kind of behavior we’re discussing here. A quarter of people say they have been treated unkindly or attacked online, while a hefty majority (70 percent) said they’ve been treated well, according to the Pew Research Center. Of course, something happening matters even if it’s only happening to a small portion of the population, but this is worth noting since it can seem at times like the Internet is nothing by cyberbullies and trolls and hoaxes with the occasional Bill Murray anecdote mixed in.)
The notion that online outbursts can precede physical actions has been seen in bursts of violence recently. A gunman in Santa Barbara, Calif., left behind an extensive digital footprint that included writing the words “a world where WOMEN FEAR YOU” before setting out last month to murder women. And the married couple that shot and killed two Las Vegas police officers and a bystander had posted online about their hatred of the government; one of the shooters had even posted something that mentioned shooting police. (Police had visited his home because he had made threatening remarks to a government agency, but the detectives determined that he didn’t seem to be a threat.)
Kevin McMahill, assistant sheriff of Clark County, noted that just because someone may express a certain ideology online “doesn’t mean they will translate into a murderer.” A key difference here: The Las Vegas shooters, in this case, had expressed a general hatred, while the Facebook posts at the center of Elonis v. U.S. are much more specific in terms of who is being threatened.
Another way to look at how people’s online selves can indicate potential future action can be found in the three lives people lead, said David Gomez, a retired FBI agent who spent time as a profiler. People have a public life, a private life and a secret life, he said. A lot of times, Gomez said, people never encounter any “precipitating event” that would jolt them into acting on their secret lives.
“People can go their entire lives without running into that precipitating event,” he said. “Other people cannot. … If there’s a violent aspect to the secret life, any kind of precipitating event can cause it to move forward into more violent action.”
Attorneys for Elonis noted in a legal filing that because online communication is “inherently impersonal,” such communication is “inherently susceptible to misinterpretation.” The brief filed by the U.S., rather, argues that a lower court was correct in telling a jury to determine if Elonis’s posts were a real threat under the “reasonable person” standard (which posits that if Person A makes a threatening statement about Person B, a reasonable person would assume that Person B would interpret the comment as a serious threat). The case revolves around online threats and whether a person has to show intent to follow through on these threats, but the larger issue is one that could play a role in how we treat online communications going forward. We’ll find out more after the justices hear the case next fall.