Threats, trolls, online harassment – what’s a First Amendment lover to think about where we’re going with social media? After the shooting of five Dallas police and transit officers at a Black Lives Matter rally this summer and a similar incident in Baton Rouge, Facebook and Twitter sizzled with incendiary statements calling for more violence against the police (funny, you’d think the police would have caught a bit of a break after that one).
Although cops and prosecutors are keeping the details close, Detroit arrested four people in the wake of the Dallas killings for social media posts reportedly including “It’s time to wage war and shoot the police first,” “Kill all White Cops”, and “This needs to happen more often.” While the statements are pretty disheartening for anyone hoping to have some meaningful dialogue about our country’s policing practices, the arrests are noteworthy for a different reason.
The First Amendment doesn’t protect all statements to the same degree. “Political” speech, the free-speech gold standard under our Constitution, is considered a critical part of the “marketplace of ideas” necessary for a healthy democracy. As such, it gets almost total deference. Yes, this includes the inane and often misleading accusations that candidates and their advocates hurl at each other throughout every election cycle, but such is the price of a system based on open debate and public elections. But obscenity, defamation, child pornography and threats are a few of the categories at the low end of the protection spectrum.
Statements that blend threats with political opinion like the post-Dallas posts pose a special dilemma. Are they protected? Should they be?
It’s a fairly big deal to arrest someone in the United States for what they say (these days, anyway – more on that another time). Since the Supreme Court’s 1968 ruling preventing the prosecution of a KKK leader in Brandenburg v. Ohio, even those advocating violence can’t be charged unless their statements are likely to incite imminent lawless action. It’s this rule that would likely be applied in determining whether the Dallas arrests are constitutional.
In the era of social media, however, it’s just not clear what the Brandenburg standard really means. Posting online provides a level of anonymity and distance that lets people disconnect from what they write. It’s difficult to know if posters are serious, and certainly easier for all of us to vent using language we might not choose for a live audience. Add the element of immediacy and the fact that the US isn’t exactly winning any awards in the critical-thinking and educated-masses categories, and prosecution for threatening online statements could lead to seriously overcrowded penal institutions (oh, wait . . . )
At the same time, comments made online have a broader audience, are dumped into an unpredictable pool of listeners, and can result in real harm. Urging “whoever” to shoot cops immediately on the heels of a nationally covered mass police shooting may in some circumstances not be so different from dropping a match into a pool of gasoline (or shouting “fire” in a crowded theater, as Oliver Wendell Holmes famously put it in another seminal free speech case Schenk v. US).
But can you really hold someone who sent a tweet in Ohio responsible for igniting a riot in California? If that’s going to be the rule, there’s certainly the potential for quashing public dialogue.
Interestingly the Court hasn’t yet taken up this issue, despite the fact that the social media era has directly coincided with our increasingly polarized and hostile national political conversation (see the current election cycle for no shortage of examples). The Nine (Eight for the moment) have long had the practice of giving social change time to develop before ruling on related issues, and they’re likely doing that here. If the Dallas-shooting posters are prosecuted, it could be the test case that provides the backdrop for the next generation of free speech and media law. So wherever you stand on our coming election, you might want to get those hyperbolic posts up while you still can.
If you have thoughts about where the Court should come down on this issue, or the social media environment that you’re seeing, I’d love to hear about it!