Privacy SOS

What’s the difference between online speech and offline speech? Nothing, says Mass. high court

by Jessie Rossman and Kade Crockford

What’s the difference between online speech and offline speech, with respect to the First Amendment and violent threats? Nothing, according to a recent Massachusetts Supreme Judicial Court ruling. We at the ACLU couldn’t agree more.

In Commonwealth v. Walters, the state of Massachusetts charged Michael Walters with crimes including violating the state’s stalking statute. To convict someone of stalking, the government must prove (among other things) that the individual “ma[de] a threat with the intent to place the victim in imminent fear of death or bodily injury.” According to prosecutors, Michael Walters’ Facebook posts, which included an image of him holding a gun and the quote “make no mistake of my will to succeed in bringing you two idiots to justice,” constituted such a threat.

Although the constitution prohibits criminalizing almost all speech, speech that qualifies as “true threats” can be banned. The question in Walters was how this doctrine applies in the digital world. The SJC’s answer was loud and clear: exactly the same way it does IRL.

Only a narrow range of words constitutes true threats: “the defendant must intend to place the victim in immediate fear that physical harm is likely to occur and the victim’s fear must be reasonable.” The government also must prove that the defendant intended to communicate that threat to the intended victim.

None of this changes on the Internet. As Justice Botsford’s unanimous majority confirmed, “we begin with the requirements of the First Amendment.” It may be that Mr. Walter’s ex-girlfriend was subjectively scared when she saw his Facebook posts. But that is not – and has never been – the appropriate legal test.

Menacing speech doesn’t magically become a criminal threat simply because it’s posted on a website. Instead, “it is necessary to focus on the content of the page in the context of the past and present relationship between the defendant and the victim to determine whether there was sufficient evidence of the defendant’s intent to threaten the victim and whether the victim’s fear was reasonable.” Refusing to rely on “tenuous” or “speculative” arguments, the Court held that “a reasonable juror could not have found that the defendant’s Facebook profile page constituted such a threat” in this case.

Because of this holding, the Court did not reach the question of “whether there was sufficient evidence that the defendant intended to communicate the contents of this page to the victim.” ACLUM argued in its amicus brief that the Government cannot simply rely on the fact that the defendant used a social media platform that the alleged victim also happened to use. Instead, it must point to specific facts to show that the defendant actually targeted the supposedly threatening speech at the alleged victim. Although the Court did not decide this issue, it did emphasize that “where the communication of the threat is indirect – for example, through an intermediary – the Commonwealth must prove beyond a reasonable doubt that the defendant intended the threat to reach the victim” and list a series of factors that “will likely be important in future cases involving alleged internet-based threats.”  

The Court’s ruling is a robust defense of First Amendment principles in the digital age because, quite simply, it applies First Amendment precedent in the offline world to its troll-filled online counterpart. The Court acknowledged that “new technology has created increasing opportunities for stalkers to monitor, harass, and instill fear in their victims.” But it simultaneously acknowledged that traditional First Amendment doctrine still provides the proper protection from these potential dangers.

Online, “true threats” can be criminalized; online speech that does not cross this threshold cannot. The technology is new, but not the analysis.

We may need to change our phones every two years to remain up-to-date, but the First Amendment’s long-established principles are fully equipped to keep our speech protected in the digital age. Thankfully, the Massachusetts Supreme Judicial Court agrees.

© 2018 ACLU of Massachusetts.