Technocrat talked with University of North Carolina law professor William P. Marshall about potential implications for social media of Elonis v. United States, which the Supreme Court heard oral arguments on last week. You can find a roundup of the background of the case here. Below is Part Two of our Q&A with Marshall (lightly edited). Part One can be found here.
Q: So if the court finds in favor of Elonis, how could that impact social media…?
A: I think that will protect more kinds of communications that take place on social media. I mean this is a relatively narrow issue. The issue of threats is a relatively narrow issue. But it [suggests] that the court may be looking at Internet speech in not the same kind of way that it looks at face-to-face speech. So… [it] might allow a little bit more latitude on what you do on the Internet than you might otherwise do outside of that context.
Q: What about if the court rules against Elonis?
A: Well if the court rules the other way, I think this again will be a relatively narrow decision dealing with threats, but I think it will also be setting the table for other kinds of regulations of speech to be applied to people in their communications on the Internet.
…We say often things that we might say to a person in a private conversation that we know isn’t gonna go anywhere. A lot of people have yet to realize that when you send the same thing to somebody over the Internet it’s a long-term record that can be replicated and occasionally turned over to law enforcement authorities.
So it’s gonna tell us all to think before we write, whether it be text, or Twitter or email or Facebook.
Q: And how do you think the case will turn out?
A: My own thought is that I think they will overturn his conviction on the narrow statutory grounds and require there has to be a subjective intent to threaten.
And the reason why I think they may do that is because I’m not sure they’re ready to deal with the broader issues on Internet regulation that we just talked about….