If you thought you still had free speech on the internet, you might be in for a surprise. A couple of weeks ago the US Supreme Court issued an opinion reversing a lower court’s conviction of a man, Anthony Elonis, who posted violent messages on Facebook. Forbes reports, the majority opinion written by Chief Justice John Roberts, raised the level of criminality required for conviction of online threatening, “ruling that prosecutors must offer some proof that a defendant made a ‘true threat’ with the intent to hurt a specific individual.” In other words when it comes to online threats, intent matters! Bloomber adds, “The justices didn’t decide whether Elonis’s First Amendment rights were violated, instead interpreting the federal threat statute in a way that averted potential constitutional problems.”
Apparently no one told Judge Katherine Forrest or US Attorney Preet Bahara. Bahara sent a subpoena to Reason.com demanding information about users who posted comments that were perceived as threatening, but may lack the intent required by the US Supreme Court to justify a conviction. The messages read:
“Its judges like these that should be taken out back and shot.”
“It’s judges like these that will be taken out back and shot.”
“Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first.”
“Why do it out back? Shoot them out front, on the steps of the courthouse.”
“I hope there is a special place in hell reserved for that horrible woman.”
“I’d prefer a hellish place on Earth be reserved for her as well.”
“F*** that. I don’t want to pay [sic] for that c***’s food, housing, and medical. Send her through the wood chipper.”
Judge Forrest, you may recall, is the federal judge who sentenced Ross Ulbricht to life in prison; Preet Bahara is the man who prosecuted Ulbricht in the Silk Road case. That case seems to have set the bad precedent that some expected: that a website operator can be held liable for the actions of their users, at the discretion of the prosecuting attorney of course.
Ken White wrote on PopeHat.com, “The ‘threats’ do not specify who is going to use violence, or when. They do not offer a plan, other than juvenile mouth-breathing about ‘wood chippers’ and revolutionary firing squads. They do not contain any indication that any of the mouthy commenters has the ability to carry out a threat. Nobody in the thread reacts to them as if they are serious. They are not directed to the judge by email or on a forum she is known to frequent.
Therefore, even the one that is closest to a threat… lacks any of the factors that have led other courts to find that ill-wishes can be threats.”
If someone is making a credible threat it shouldn’t matter whether the threat comes in written or spoken word. However comments that are off-hand remarks from keyboard warriors should not lead to the prosecution of the person trying to act tough from the comfort of his home, nor should the operator of the website be called to court to hand over information they may not even possess.