How “Free” is Speech on Social Media?

To many, social media is a venue where one can express his or her views, no matter how favorable or abrasive, and the only expected backlash is the vehement disagreement from one’s friends or followers.  However, in light of the recent threats to police officers and specific racial groups, the Department of Justice is taking a sharper look at what citizens say on various social media platforms.

Because social media is relatively “new,” the statute governing alleged threats, 18 U.S.C. § 875(c), was designed to cover threats made through interstate mail.  Until recently, the statute was not applied frequently and the federal circuits were divided as to what the intent requirement of the statute should be.  The Supreme Court in Elonis v. United States rejected a negligence standard for conviction under the statute, but did not identify the correct standard to be used for § 875(c) convictions.  Following this case, the federal circuits have been confronted with the question multiple times, and have appeared to reach a conclusion.  In order to convict, the government must demonstrate 1) that the communication was a true threat and 2) that the defendant knew that the language would be perceived as a threat or communicated the language with the purpose of issuing a threat.  See United States v. Haddad, No. 15-1398, 2016 WL 3316744 (7th Cir. June 15, 2016); United States v. Twitty, No. 14-1173, 2016 WL 373511 (10th Cir. Feb. 1, 2016); United States v. White, 810 F.3d 212 (4th Cir. 2016).

So what does that mean for your social media post?  The Department of Justice is entitled to investigate and prosecute individuals who “speak” in violation of this statute on social media.  On one hand, individuals are free to express hatred toward an individual or group of individuals.  However, when that hatred is directed at a specific person or group, with especially violent terms, and includes specific, threatening facts about an action or plan, this speech crosses the line of “hate” and constitutes a threat.  See White. One important note regarding these investigations and the required proof: there need not be an actual intention to carry out the threat, rather the intent element focuses on the speaker’s intent to issue a threat.

The increased investigation in this field could yield future challenges to the statute regarding one’s rights under the First Amendment.  However, the specificity of the threat required by the federal circuit courts creates a narrow pool of potential perpetrators; one that most people’s angry rants will not begin to qualify for.  All in all, social media will continue to be a place where free speech is cherished and protected, but when speech goes too far, the government is obligated to step in and protect its citizens and will not hesitate to do so.



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