The Washington PostDemocracy Dies in Darkness

Facebook is built for storytelling. Should the law blame people who use it to spin stories?

Jeff Dion, director of the National Crime Victim Bar Association, speaks with reporters outside the Supreme Court on Monday after arguments in the case of Anthony Elonis, who was convicted in 2010 of threatening his wife via social media. (Reuters/Jonathan Ernst)
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Facebook, explained a company engineer on a visit to The Washington Post this week, calls nearly everything users do on the site a "story." The little input box that users type into might be labeled Update Status. But what pops out of it in a stream of well-designed little information boxes on the Facebook home page -- a grandmother's political musings, a link to an article on a mainstream news site, a six-second video of your holiday beach trip, whatever -- are referred to inside the company as stories.

In public, another Facebook staffer explained, Facebook for years called them simply posts. But they've switched the language they use in the outside world to match their own internal jargon. Why? Because Facebook users have taken to thinking of themselves as producers of "stories," too.

How exactly the forum that is Facebook -- where we can be our most dramatic, most colorful, most outraged selves -- should be thought of under the law is something the Supreme Court has had to contend with this week. On Monday, the court heard the free speech case of Anthony Elonis, a Pennsylvania amusement park worker. Elonis was in the habit of threatening his estranged wife and others in often lyrical yet quite violent Facebook posts. In one, he encouraged his son to dress for Halloween as "matricide." For all this, a lower court sentenced Elonis to nearly four years in prison.

What the nine robed justices -- average age of 68, and not one of them an admitted Facebook user -- have to decide is whether Elonis was engaged in mere First Amendment-protected storytelling and whether a reasonable person in 2014 would interpret a Facebook post that reads  "If I only knew then what I know now, I would have smothered your [expletive] with a pillow" as what the law calls a "true threat." Elonis v. the United States, though, also raises a somewhat deeper question about the nature of Facebook.

That is: Social media is geared toward performance. Should we really be surprised when people use it to perform?

On Monday, the justice to watch was Chief Justice John Roberts, who well captured the tricky issues that the court seems to be wrestling with. For a few moments, Roberts entertained the idea that, for Elonis, Facebook was nothing but an online fantasy land. Echoing Elonis's lawyer, Roberts tried out the notion that "it's a good thing that he had this outlet of the Internet so he didn't have to do it," as in, physically harm his estranged wife. That's an old idea, akin to the notion that mere angry scribblings in a diary aren't enough to signal that the scribbler means to do anyone real harm.

But Roberts spent far more time hearing out a different theory. Elonis's estranged wife has said that the Facebook incidents made her feel stalked, afraid for her life and the lives of her children. But should they have? Or should she have just seen them as an extreme version of the high-pitched spouting-off that so many of us do on Facebook?

(If you don't believe that Facebook makes many of us act a little more extreme than our regular selves, recall what your News Feed looked like on the day after Election Day.)

Elonis isn't alone in getting into trouble for his Facebook postings. There's Justin Carter, a Texan who, at age 18, was arguing on Facebook about the video game League of Legends. Accused of being crazy, Carter responded that indeed he was. So much so that, he wrote, that "I'm going to go shoot up a school full of kids and eat their still-beating hearts." Carter was locked up for it. But Roberts played with the idea that that was a technology-ignorant overreaction (even as he himself got the technology in question a little wrong).

"So," floated Roberts, "you don't take what is on the Internet in abstract and say, 'This person wants to do something horrible.' You are familiar with the context. You are familiar with the fact that this was a couple of teenagers in a chat room playing a game, right?"

That argument pleased Elonis's attorney, who was happy to run with it. Said John P. Elwood, "I think many of the speakers who are online and many of the people who are being prosecuted now are teenagers who are essentially shooting off their mouths or making sort of ill-timed, sarcastic comments, which wind up getting them thrown in jail."

But things seemed to get especially complicated for the chief justice when thinking of the somewhat strange nature of Facebook as less of an obscure chat room and more as a sorta private, sorta public space. Does what constitutes a threat change if you have only a few Facebook friends? What if you have a few thousand? What if you have only a handful but they're a mix of people all ages, only some of whom might get the origins of the rap lyrics Elonis says he was quoting? Roberts seemed to suggest that he wasn't sure of the answer.

Justice Samuel Alito, however, provided a worst-case-scenario for what might happen if the law assumes that all of Facebook is nothing more than a stage: "Like a roadmap for threatening a spouse and getting away with it."

First Amendment scholars agree that the Elonis case isn't easy.

William McGeveran, an expert in technology and free speech who teaches at the University of Minnesota Law School, says: "The justices are fumbling with how you judge context in the space of people's News Feeds. The true threat doctrine is from spoken language. It's from mobs in the streets that are yelling. But you read an individual Facebook post from somebody, and you don't click back to see their profile page, it's shorn of context."

McGeveran points to the case of a Minnesota 17-year-old who was suspended and faced possible criminal defamation charges after tweeting, "Yes, actually," when asked by an anonymous online provocateur if he had kissed a local teacher. The Minnesota teen argues that he was just kidding, as any sensible person could see. "Clearly," says McGeveran, "we can't hold people responsible for something that everyone in the world would see as sarcastic, except for someone who had never met Twitter before."

That raises the possibility that user base matters. Should a reasonable person in the modern era be expected to be familiar with the conventions of Twitter and its 280 million active users? Perhaps. But perhaps more so when the forum at issue is Facebook, with three times as many users around the planet.

Inarguably, social media is far enough along to have developed its own subcultures, says Geoffrey R. Stone, a professor at the University of Chicago Law School. "To the extent that people communicate differently in this forum," says Stone, "that affects what a reasonable person would expect it to mean and what a person intended it to mean."

And, in fact, suggests Stone, the fact that Elonis had any sort of audience at all on Facebook might work out better for him than had he made the threats in, say, a letter to a friend. "Facebook is arguably less likely to be a serious threat," says Stone, "because what kind of an idiot commits a crime in such a public place?"

There's a very good chance that the Supreme Court will decide Elonis v. the United States on the very narrow grounds that Elonis was, indeed, just such an idiot. His postings were exceptionally targeted and violent, and the court may decide that he meant them to read as a threat in anyone's eyes, no matter where they were posted. But it won't be the last time a court, and perhaps the Supreme Court, will have to decide what exactly the rest of us mean when we go telling stories on Facebook.

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