College Students’ Right to Be Jackasses Online at Risk in Supreme Court Case

August 26, 2014

By Greg Piper at The College Fix

The Internet isn’t exactly known for reasoned, nuanced conversation. Well, maybe it is if you follow an excellent legal blog like The Volokh Conspiracy, which had a post Monday about thelittle-known translations of the U.S. Constitution into German and Dutch at ratification.

But if you’ve ever read the comments on a YouTube clip, or participated in a flame war in a Facebook post, surely you’ve agonized for the future of humanity.

What you may not have expected is that acting like a jackass online could be a criminal offense – and that it has bearing on hot-button campus issues like sexual harassment.

The Supreme Court is weighing whether to overturn a ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia that essentially criminalizes some out-of-context speech online, which worries the First Amendment advocates at the Student Press Law Center.

That group along with two other free-expression groups asked the high court to “set a high standard for criminally prosecuting speakers for references to violence on social media,” as SPLC said in a press release Monday.

The case revolves around a man whose Facebook posts “fantasized in graphic terms about killing his estranged wife and law-enforcement agents,” SPLC said.

Why is that relevant to college students? The groups’ friend-of-the-court brief notes:

Students and other young adults are prolific users of social media. As such, they are particularly affected by the court of appeals’ application of a negligence standard [i.e., you are responsible for the effect of your words on your listeners] to a statute criminalizing, inter alia, threats communicated through social networks.

The nature of social media communication and the rise of apps means that your intended meaning in any given post may get stretched and twisted into a different meaning for other readers, the brief says, citing the “narrative” building app Storify. This activity can happen

with or without the knowledge and consent of the original speaker. … Thus, a Twitter user’s harmless musing about a violent scene from a movie or television program could turn up, devoid of context but attributed to its original author, in a published narrative that gives the remark ominous unintended meaning.

Something similar happened to a Texas teen who, in an argument following an online gaming session with another user, made a sarcastic comment on Facebook about shooting up a school followed by “LOL” and “J/K,” the brief says. He spent months in jail after he was reported to authorities by a totally unrelated user.

The brief also notes a New Jersey professor was suspended by his college for posting a photo of his young daughter wearing a shirt with a violent Game of Thrones quote on it, on speculation that it was “threatening a school shooting”:

Such is the school’s concern that, even after the misunderstanding was revealed and the teacher reinstated with back pay, the school required him to remain off campus for more than a week and to visit a psychiatrist before returning to work.

Veteran observers of federal investigations of sexual harassment on campus may recall this similar attitude – that context is irrelevant when it comes to guilt – in the “blueprint” document that the departments of Education and Justice signed with the University of Montana last year.

The Foundation for Individual Rights in Education said then, quoting the federal agreement:

“sexual harassment should be more broadly defined as ‘any unwelcome conduct of a sexual nature’” including “verbal conduct” (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an “objectively reasonable person of the same gender in the same situation.” If the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

There are parallels between the government’s view of sexual harassment in the blueprint document, and the 3rd Circuit’s naive view that venting on Facebook is a genuine threat. Consider:

A school’s Title IX coordinator is required to log and keep records of complaints indefinitely (speech on social media is basically permanent, leading to future misunderstandings); “every casemust be investigated,” in FIRE’s words (every off-color social-media utterance is worthy of reporting to authorities); “universities may even punish a student before he or she is found guilty of any offense” (venting online can be punished as a specific, credible threat).

Sadly, it seems more likely the Supreme Court will put strict limits on the criminalization of venting online, than that federal agencies will adopt commonsensical regulations when it comes to judging sexual offense.