Most of you know that we’re very active on social media. We believe the digital platforms have allowed for more transparency and offer new ways for lawyers to help clients.

With this increased visibility and new technology come new responsibilities, rights and remedies. One huge concern for many is that of free speech and how your traditional Constitutional rights and remedies are affected when communications are made online.

Today, for the first time, the Supreme Court held, in a narrow ruling, that your Constitutional right to free speech holds true even to communications made on social media and, in this case, Facebook.

In the underlying case, a Pennsylvania man, Anthony D. Elonis, had posted several messages on Facebook that many interpreted as being violent. He was prosecuted and convicted under a federal threat statute. The arguments made by the prosecution at the initial trial level was that if a reasonable person believed this man’s Facebook communications were a threat, then he was in violation of the statute. Elonis was convicted and sent to jail for a 44-month term.

On final review, the Supreme Court held that is not the law. Chief Justice John Roberts wrote, “Our holding makes clear that negligence is not sufficient to support a conviction.” The court went on to hold that the legal standard used to convict this man was far too low or easy to meet. It pointed out that more is required other than whether or not a reasonable person would regard the communication as a threat.

Several of the Facebook comments included:

“There’s one way to love you but a thousand ways to kill you.”

“Enough elementary schools in a ten mileradius to initiate the most heinous school shooting ever imagined.”

During his trial, Elonis testified his Facebook posts were inspired by the rap star Eminem.

While we’re not big fans of anyone making these types of comments on the social platforms, it is noted that Elonis claimed he was an artist who turned to rap lyrics for therapeutic purposes to help him cope with depression. Regardless of the statements or reasons, what SCOTUS decided in this narrow case is that more than just negligence is required to convict.

At issue on the appeal of the underlying conviction was whether or not the government was required to prove intent or simply an easier to argue and prove “reasonable person” standard. The court agreed with counsel for Elonis and the later.

It’s important to note that, in this case, at one time or another, Elonis posted disclaimers stating he was exercising his freedom of speech. In the briefs, his counsel wrote, “The First Amendment¹s basic command is that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable.”

In a well-written brief filed by the ACLU, it effectively argued that context does indeed matter. In fact, “Words are slippery things,” and that a statute that limits speech “without regard to the speaker¹s intended meaning” runs the risk of punishing protected First Amendment expression simply because it is “crudely or zealously expressed.”

We agree.

This famous movie speech by President Andrew Shepard (Michael Douglass) from “The American President” really does say it all. Please enjoy your Constitutional right to free speech and share your thoughts and comments below.