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Freedom of Facebook speech is being tested

When can the government prosecute someone for using heated language on Facebook? The Supreme Court heard arguments last Monday on where it should draw the line between protected speech and “true threats” that even the First Amendment does not protect.

The speech in question, from petitioner Anthony Douglas Elonis’ Facebook page, ranges from puerile to despicable, and it includes descriptions of the hypothetical murder of his estranged wife. She was so concerned that she obtained a protective order against her husband, who nevertheless continued to taunt her electronically. Mr. Elonis’ words and behavior were beyond contempt; his wife is the sympathetic figure in this story. Unfortunately, a ruling that gives Mr. Elonis what many would see as his just deserts might also end up being used to discourage speech that deserves protection. The justices must be careful.

The government argues that it can lock up someone like Mr. Elonis as long as it convinces a jury that a reasonable person would construe his words to be a serious threat. Mr. Elonis’ attorneys and a spate of free-speech advocates, including the newspapers’ trade association, counter that the legality of someone’s speech should not be left to such a weak and vague standard. Instead, they argue, the government should have to prove that he intended his words to be received as a threat.

In one sense, this case deals in material fairly new for the court, in the realm of social media. Yet some age-old principles remain useful. Freedom of speech is the most cherished of American rights, zealously protected by legal rules that give wide berth to expressions of nastiness, pettiness, anger and frustration – and to descriptions of gruesomeness, violence and horror – in order to steer far clear of crushing legitimate speech that might be disfavored by politicians, misunderstood by judges or unpopular in a particular community. Yet the government opposes even having to show recklessness on the part of a speaker in order to imprison him.

“That’s not the kind of standard that we typically use in the First Amendment,” Justice Elena Kagan said. “We typically say that the First Amendment requires a kind of buffer zone to ensure that even stuff that is wrongful maybe is permitted because we don’t want to chill innocent behavior.”

The court must keep that principle in mind – not for Mr. Elonis’ sake but for the sake of those who might stop speaking out of fear that a prosecutor and jury somewhere will disapprove of what they have to say.

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