(Note: This post first appeared on the Voce Blog)
Yesterday the Supreme Court of the United States issued a decision that outwardly seems to affect individual users of Facebook and other social networks, but may well impact brands as well. In a 7-2 ruling, the Court held that rants and even threats issued on Facebook may not be prosecuted solely on the basis of how they were perceived. In short, law enforcement has to take into account the intent of the person posting the messages rather than just how someone perceives the messages.
The test, the court said, is what the sender means, not whether the recipient considers it a threat. Not only has this issue made its way to the Supreme Court but it’s been hotly debated in the last year or so as more and more people speak out about the threats they’ve received, usually because of their race, gender or sexuality. “Doxxing” along with threatening Tweets, Facebook posts and more were among the favorite tactics by anyone who dared speak out against the “Gamergate” crowd, though that’s just one example of what some people deal with on a daily basis.
There were immediate reactions to the decision. The ACLU and other free speech advocates hailed the decision, saying that deciding otherwise could have had a chill effect on free expression, including music and art. Advocates had also argued that “a statute that limits speech “without regard to the speaker’s intended meaning” runs the risk of punishing protected First Amendment expression simply because it is “crudely or zealously expressed.”
Domestic violence advocates, on the other hand, decried the ruling, saying that the court had, in effect, licensed abusers to use social media to terrorize their victims while claiming innocent intent. “Threats cause devastating harm to victims, including fear, anxiety, loss of sleep, and disruption, regardless of whether the abuser intended to threaten or only intended to vent or to make a joke,” said Kim Gandy, president of the National Network to End Domestic Violence.
It’s a slippery slope, trying to prosecute based on how words are perceived – such prosecutions open the door to potential abuse by those in power, whether in government or law enforcement. On the other hand, it seems inconceivable that someone threatening to kill someone else on Facebook could be considered legal and protected speech. The Court also did not define or narrow what the standard of deciding intent would be, so this issue could well be revisited in future cases.
How does this impact businesses and brands? Ultimately, this decision is a victory for advocates of free expression online – which unfortunately also means a victory for trolls and agitators online. Most brands have faced “haters” online or consumers who are decidedly not fans of their brand. This case implies that all online conversations are protected speech, and even the most vile or seemingly threatening posts can only be prosecuted if law enforcement determines that the commenter actually intended harm.
So if a brand finds itself confronted on its Facebook page or on Twitter by an agitator who seems threatening or to be suggesting a physical threat to employees, a call to law enforcement alerting them to the perceived threat may not instigate any action by authorities, unless the authorities decide the person actually meant to carry out their threat and wasn’t just spouting online because they could.
(Again, how the authorities are supposed to make that determination, the Court left unspecified.)
Brands active on social networks or who frequently encounter trolls online should be aware of this decision as they develop their response strategies. It’s for situations like this that we work with clients to develop strong comment policies, so everyone knows where the lines of appropriate behavior are and threatening or similar comments can be dealt with appropriately.