To What Extent Should Your Activity on Social Media Be Protected as Free Speech under the First Amendment?

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In 2010, a man posted a number of statements on Facebook that alarmed the FBI. They claimed he had threatened his ex-wife, co-workers, an FBI agent, and others. While a literal reading of the words out of context clearly sound threatening, he claimed that he was simply engaging in artistic expression. He likened his online tirades to rap lyrics used by artists like Eminem.

Ultimately, he was convicted and he spent several years in prison before his appeal landed before the Supreme Court. The case, Elonis v. United States, is one of many in a long tradition of free speech cases, but it was unique in one way: it was the first time the Supreme Court had had to deal with free speech in the context of social media.

For the last century, the Supreme Court has tried to define what the First Amendment means and exactly what kinds of speech are and are not protected. You can’t create a clear and present danger, but you can espouse violent ideas that don’t encourage imminent lawless action. You can be profane in person, but you can’t be profane on the radio. You can be artistic, but you can’t be obscene. You can make political statements at school, so long as you don’t interrupt the school day.

These issues have more or less been settled, but the advent of social media raises a host of new questions. Is an online statement threatening, if the author doesn’t intend it to be so? Where’s the line between friendly banter and cyberbullying? Should there be consequences for defaming someone online? How should the government deal with terrorist organizations that use social media tools to recruit and terrorize?

The Elonis case addresses one of these questions, but it’s just the tip of the iceberg.

To what extent should your activity on social media be protected as free speech under the First Amendment?