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Korobov: Where free speech ends

BY MICHAEL KOROBOV | DECEMBER 04, 2014 5:00 AM

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You’ve probably noticed them. Every time you look over at people, chances are they are on their phones. And if they are on their phones, chances are they are on Facebook. The social-media giant has accumulated 1.2 billion monthly active users since its inception 10 years ago.

The increased connectivity allows us to share posts, photos, and much more with anyone in the world. More content isn’t always a good thing. It means that there are increased opportunities to post something embarrassing, harmful, or worse yet, illegal.

While the First Amendment of the Constitution definitively states that “Congress shall make no law … abridging the freedom of speech,” in reality, this isn’t quite the case. Our freedom of speech does have limitations. The amendment does not protect slander, child pornography, direct threats, and plagiarism.

This dividing line that defines whether speech is legal is not black and white.

On Monday, the Supreme Court heard arguments about the case of Anthony Elonis. The Pennsylvania man was convicted of threatening to injure his wife. One of the writings went, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” He was sentenced to four years in prison.

Elonis claims that he was simply creating a rap and that the writing helped him deal with his emotions. He equates his work to that of rapper Eminem and states that he did not intend to scare anyone. On the other hand, some feel that this is merely an excuse. Supreme Court Justice Samuel Alito believes that Elonis’ justification creates a dangerous formula to get away with anything: “You say, ‘I’m an aspiring rap artist,’ and so then you are free from prosecution.”

The Supreme Court even had Chief Justice John Roberts reading Eminem rap lyrics during the proceedings. Indeed, Elonis’ posts are eerily reminiscent of violent rap lyrics that are produced all too commonly without any prosecution, often containing direct threats against specific people or groups of individuals.

Because freedom of speech is vital in a democracy, courts have often opted to side with protecting speech, even in extreme scenarios. In 1977, the National Socialist Party of America, formerly called the American Nazi Party, wanted to march through Skokie, Illinois. The community was predominately Jewish, with one in six residents being Holocaust survivors. The village obtained an injunction that barred the demonstrators from wearing Nazi uniforms or swastikas. The case went to the U.S. Supreme Court, which told the Illinois courts to revisit their refusals to stay the injunction and emphasized First Amendment rights. In the end, the Illinois Supreme Court rejected the Skokie argument that swastikas were threatening and determined that the group members were allowed to wear swastikas at the march.

While the need to make sure that people do not feel threatened is understandable, a four-year sentence for online posts seems excessive. If the Supreme Court comes down on Elonis, it must do the same for every other person or artist who produces threatening material. With the rampant use of Facebook, along with other social-media sites, policing and scrutinizing every post, image, song, etc. is an impossible task.

Law enforcement should continue to monitor and follow up on threatening activity. However, protecting free expression should remain a top priority. As Evelyn Beatrice Hall, in her biography of Voltaire, brilliantly put it, “I disapprove of what you say, but I will defend to the death your right to say it.”


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