#I🔫U: Considering the Context of Online Threats

47 Pages Posted: 6 Feb 2018 Last revised: 20 Nov 2018

See all articles by Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

University of Missouri School of Law

Linda Riedemann Norbut

Brechner Center for Freedom of Information, University of Florida

Abstract

The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common but also magnify the potential for a speaker’s innocent words to be misunderstood. People speak differently on different social media platforms, and architectural features of platforms, such as character limits, affect the meaning of speech. The same is true of other contextual clues unique to social media, such as gifs, hashtags, and emojis. Only by understanding social media contexts can legal decision-makers avoid overcriminalization of speech protected by the First Amendment. This Article therefore advocates creation of a procedural mechanism for raising a “context” defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having their opinions misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often avoiding the anxiety and expense of trial. This Article contends that criminal defendants in threats cases should have a similar defense that permits them to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pretrial hearing. In cases that cannot be resolved before trial, the context defense would entitle a defendant to produce contextual evidence at trial and have the jury instructed regarding the role of context in separating threats from protected speech. Although adoption of the context defense would be especially helpful in correctly resolving social media cases, its use in all threats cases would provide an important safeguard against erroneous convictions of speech protected by the First Amendment.

Keywords: First Amendment, threats, true threats, overcriminalization, Justin Carter, Elonis, free speech, social media, defamation, defense

Suggested Citation

Lidsky, Lyrissa Barnett and Riedemann Norbut, Linda, #I🔫U: Considering the Context of Online Threats. 106 California Law Review 1885 (2018); University of Missouri School of Law Legal Studies Research Paper No. 2018-11. Available at SSRN: https://ssrn.com/abstract=3118659

Lyrissa Barnett Lidsky (Contact Author)

University of Missouri School of Law

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States

Linda Riedemann Norbut

Brechner Center for Freedom of Information, University of Florida ( email )

PO Box 117165, 201 Stuzin Hall
Gainesville, FL 32610-0496
United States

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