Discussion for article #230686
The internet didn’t exist when the 1st Amendment was written. Technology is, indeed, re-writing the rules that we, as a society, live by. In the digital age, absolutely nothing is personal or private. Anyone can gain access to anyon else’s personal information, and post that info on the internet for the entire world to see. I admire much of the work of Anonymous, but i fear that they will eventually go too far, and cause a reaction to their work that results in a draconian reversal of the rights and liberties we all now take for granted. Personally, none of us can become anonymous. Our gas and electric bills are tracked electronically. Ditto for our cell phones, our internet connections, our government tax liabilities, our cable TV subscriptions…this list goes on and on and on. Our existence, and all of our financial transactions and communications cannot be deleted. The only way to drop out of society is to literally get up and move away from civilization, in which case you’d immediately become a “person of interest” because you are not allowed to disappear from corporate or the governments crosshairs. Also personally, i don’t do Facebook. The use of such social media devices is TMI. The world survived and functioned quite all right before Facebook ever came into existance. Ditto Twitter. And Flikr, and every other instant messaging app that someone invented, for what reason exactly??
Good luck to the Supremes in figuring out how the 1st Amendment applies in the digital age.
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If Elonis were standing on the sidewalk outside his estranged wife’s residence screaming these things, would the Constitutional dilemma be any different? He could/would be arrested for “disturbing the peace”, of course; and a restraining order be sought/ ordinarily granted limiting his physical distance from her. Could a restraining order to limit the cyber-space distance from her of his “stalking speech” threats be likewise Constitutional? It would be a step below being arrested.
I share Justices Kagan’s and Sotomayor’s concerns for protecting the First Amendment, but I also acknowledge the vile and widespread cyber-bullying that now goes on, which is particularly harmful to children. The possibilitys for such cyber-bullying will only increase as social media outlets grow more sophisticated and pervasive. Truly a conundrum for SCOTUS and society.
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I don’t see how the internet relates to this. Threats have never been protected as free speech. I don’t see how this is different than saying the same things in some pre-internet medium.
Does somebody have to pay for access? asks Scalia. Nope, replies Roberts. Well, then shut it down, says Scalia. If you don’t lay out any money, than it ain’t Free Speech!
It applies through the presumption of anonymity. That sometimes is a false presumption, but if the stalker making threats assumes he will not get caught, that is a tremendous enabler to make his threats.
Elonis may argue that he is only writing fantasy and the government cannot presume intent, but that really doesn’t matter. Intent is often a consideration in prosecution but in this case, effect is enough to convict him regardless of his professed intent. If the target of his campaign reasonably perceives a real threat or is in fear from his words, he has committed a crime.
From Virginia v. Black:
“The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur. R. A. V., supra, at 388. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”
Did I mention that someone should toss this loser a serious ass-kicking?
Disclaimer: That was satire.
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…What?
The K-RATS haven’;t heard from the KochBoys, yet?
OK, I give up, when was physically threatening someone covered under “Free Speech”? Why does this even need to be addressed? Someone posts what could be considered a serious physical threat to another person and the person makes a complaint that seems valid, you arrest the person who made the threat. It’s not even a case of one person’s word vs another, this is a documented threat. And “I was only joking” is not an excuse.
SCOTUS could rule against Facebook users telling each other about the wonderful meal they’re enjoying via their Facebook pages. When they’re at the same damned restaurant. And they drove there together. And they’re sitting at the same table. Just shoot me.
In one breath Scalia says something is fact, in the next he says it’s his opinion. Yep, that’s ol’ Relative Nino for you. Great photo of him too, all serious in his thinking cap pose. You’d almost expect him to pull out that medieval cap he wore at the last inauguration.
Can’t they just file it under the 2nd amendment? Free speech and guns are two peas in a pod. With guns doing a lot of talking lately across this country. That way we get another 5-4 and pat on the back about the wisdom of the sc. lol