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When should a death threat count?

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Sometimes social media, places like Twitter and Facebook, can be a great place.

Sometimes.

But often those online services can be something far worse, harmful even.

At its worst, social media is a cesspool of anger, narrow-mindedness and caustic harassment. It is common-sense, common-courtesy, humanity drowning in a sea of soapboxes.

But words typed in a Facebook page rant or a spur-of-the-moment tweet still don't seem to have the full weight of responsibility. Tweeting a death threat, wishing someone dead, can result in a confusion of legal issues.

That confusion seems fueled by the natural casualness in which people communicate in these sorts of settings. To make a threat stick, to have it escape the protection of First Amendment rights and become criminal, it has to be a considered a "true threat."

But the point at which telling someone you want to kill them makes the leap from blowing off steam to true threat can be confusing. Trying to figure that out when it comes to a Facebook post, even more so.

And that's what the U.S. Supreme Court this month is trying to figure out.

Last week, the justices heard arguments on Elonis v. United States, a 2010 case that sent Anthony Elonis to prison for threatening on Facebook to kill his estranged wife, an FBI agent and a nearby kindergarten class. Lawyers in a similar case, one involving a Texas League of Legends player who threatened to shoot up a school, are keeping a close eye on the results.

It's also the sort of decision that could impact the rising tide of online harassment within the gaming community. While not a gaming-only issue by any means, it's a problem felt by so many in what was once a close-knit community. Gamers seem, at times, desperate to feed on themselves.

It's the sort of case, as with many Supreme Court decisions, that could have a very lasting impact. In this case, it could help shape the way people are allowed to communicate online.


"This case is about the meaning of making a 'true threat' in the context of online communications," said Lyle Denniston, a reporter with the SCOTUS blog who's been covering the Court since 1958. "The Court will be deciding whether the context makes a difference in the nature of threatening comments. It has generally proceeded with caution in applying the First Amendment to new media, and that caution was apparent during the oral argument on Monday."

Context, he explained, can mean everything in terms of how something like a threat is interpreted.

"If the threats were made in a public park or on a street corner, they might still gain First Amendment protection, because parks and sidewalks have long been considered free speech forums," he said. "If the threats were made face to face, they might not get First Amendment protection, because in that situation, the threat might appear to be carried out immediately or soon after being made."

In this case, the Court needs to decide where Facebook lands on that scale. And depending on what it says, it would likely extend beyond Facebook to other forms of social media.

"The decision will be very significant, if the Court is able to craft a workable definition of what a 'true threat' would be in the online media, especially if it draws a significant distinction between threats in an entertainment context — rap music, for example — and mere personal rants," Denniston said. "It will be most important to learn what discretion the decision leaves to criminal law prosecutors."


If ruled as a true threat, it would also mean that local law enforcement, which at times seems hesitant to investigate tweeted death threats, might find more reason to do so.

And threats that include specific actionable information, like the victim's home address, could certainly help push a case toward being a true threat.

Denniston believes that the Court, which will likely take months in private to reach a final conclusion, will likely be looking for ways to write as narrow an opinion as it can, essentially trying to give more authority to prosecutors without trampling First Amendment rights.

That it takes a court to decide just how free speech can be before it becomes a threat is the sad result of today's society, summarized neatly by a modern adage: anonymity plus audience creates terrible people.

Put simply, the freedom to say anything to anyone with no sense of consequence can bring out the worst in some.

Finding that line to walk between prohibitive laws (the sorts of things that could restrict protests against police brutality) and dangerously free speech (like shouting "fire" in a movie theater when there is none) is the sort of mandate for which the Court was created.

When community fails, I suppose, laws will have to do.

Good Game is an internationally syndicated weekly news and opinion column about the big stories of the week in the gaming industry and its bigger impact on things to come. Brian Crecente is a founding News Editor of Polygon.

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