A case which was argued before the U.S. Supreme Court on Monday could help clarify what is and what is not acceptable free speech in on line settings, News Radio 1200 WOAI reports.
In a case which may also affect the prosecution of Justin Carter in New Braunfels, a Pennsylvania man was convicted and sentenced to prison for threatening his estranged wife when he posted the lyrics from a violent and misogynistic rap song on Facebook, which referred specifically to killing the woman and slitting the throat of a law officer who investigated.
Debra Innocenti, an attorney who specializes in technology and Internet law at the local firm of Strasburger Price, says in on line speech, officials have to decide between what is 'subjective' and what is 'objective' speech.
"Let's say you were upset with our interview and you posted on Facebook...'here's where Debra lives I'm going to kill her tonight'," she said. "You couldn't do that."
She said what are called Fighting Words' have been excluded from free speech protections since well before the dawn of the Internet. In what is known as the Chaplinsky Decision back in 1942, the court codified that 'words which by their very utterance inflict injury or tend to incite an immediate breach of the peace' are part of a 'very narrowly tailored exception' to First Amendment protections.
Indeed, the high court appeared unwilling to overrule Chaplinsky and carve out a new exception for speech which is uttered on line.
"A media where people tend to feel a little less constricted sometimes and they don't often think about what they are saying," she said. "This case may prompt them to think twice about that."
Innocenti pointed out that the spread of the privacy of the Internet has led to an increased level of caustic and insulting speech, which at times borders on the dangerous. She says the Justices are worried about a growing number of cases where protection of on line free speech has led to a lack of free speech elsewhere. She cited a case in Utah, where on line threats against a planned college speaker resulted in Utah State cancelling the speaker's appearance.
"One of the threats caused the University to cancel one of their speakers, because they had gotten a threat that if she were allowed to present, there would be a school shooting worse than Columbine," she said. "So protecting free speech led to another person losing her free speech."
The justices were also not convinced that the fact that the threat was part of a hip hop song protected it. Justice Samuel Alito said it would be a 'license to threaten people,' by just 'doing it in rhyme and saying I'm an aspiring rapper.'
Innocenti said the justices are unlikely to provide on line speech any greater protection than regular speech, and she predicted rather than focusing on the speech itself, the justices will deal with the law the man was prosecuted under.
Carter, in New Braunfels, was jailed after he commented on an on line video game that he was going to 'shoot up a school.' His lawyers say his comment was sarcastic.
Originally published by News Radio 1200 WOAI.
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