Freedom of Speech and Social Media

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Freedom of speech is one of our rights in the United States, and it is guaranteed by the First Amendment. So it is hard to believe that something like social media that a majority of us use every day, could be the exception to the rule that we can say what we want to say without fear of backlash. In general, there are exceptions that prevent hate speech, defamation, and threats. Some of these aren’t legal, just frowned upon by the society at large, while others can get someone in trouble. Social media sites allow for the spread of all types of speech, from spoken word pieces on sites like YouTube, to shorter phrases said in 140 characters on Twitter. The publication of negative speech has some positive and negative consequences. We’ve seen them play out in the last few years with events in Ferguson, the Occupy Wall Street movement, and every major election.

It is difficult, however, to choose which pieces of speech are worthy of protection from action and which can be used against someone in legal proceedings. Not everything said on social media can be taken at face value. What one person deems as offensive and disturbing may incite a different emotion in another person. Striking a balance between unfiltered free speech, political correctness, and censorship is difficult. Censoring what is allowed on social media may seem like it goes against our Constitutional Rights, but allowing a free-for-all on speech can lead to threats, bullying, and hate speech.

Social Media’s Impact

Speech is not, nor has it ever been, a completely good vs. evil situation. There is so much more behind a string of text than just the literal meaning of the words. This is what makes it so difficult to decide who and what has a right to be on social media sites like Twitter, Facebook, and Tumblr. Some countries, like North Korea, Iran, China, Pakistan, and Turkey, have completely blocked their citizens’ access to social media sites as a way to ward off the problem. They operate under the theory that if you take away the cause, you won’t have to worry about it.

Many websites and apps do have “report” features so that a user can alert the webmasters that something has gone wrong. This begs the question, if someone says something terrible on social media, and it is reported but nothing happens, who is responsible for the fall out? It’s an increasingly important topic across the world; this isn’t just limited to the United States.

City of Ontario, California, et al v. Quon, et al

In 2009, the Supreme Court of California heard a case that discussed the rights to free speech in text messaging between employees. Employees of the City of Ontario, California filed a claim in district court against the police department, city, chief of police, and an internal affairs officer. They believed that their Fourth Amendment rights were violated when their text messages on city-issued pagers were reviewed. The city did not have a text-messaging policy; however, it did have a general “Computer Usage, Internet, and E-mail” policy. Those employees felt as if that particular section did not cover their pagers. The court held that the city employees had a right to privacy in their text messages because there was no specific language about text messaging in the city’s policy.

This, along with several other cases about Cloud privacy has prompted many to ask the question: are Supreme Court justices too out of the loop to fully understand the severity of the problem? Most–though admittedly not all–Justices don’t interact with social media to a great extent. Perhaps one or two may have a Twitter account, but those are often controlled by members of their team. President Obama, who is largely considered more modern with technology, is the first sitting President to have a Twitter account, but there are questions about just who actually runs it.

 Anthony Elonis v. United States

This case concerns a Pennsylvania man, Anthony Elonis, and his post of violence-filled rap lyrics aimed toward his ex-wife. He didn’t use his own name, but rather the pseudonym Tone Dougie. His rap suggested that he should use his wife’s “head on a stick” in his Halloween costume. He used images that haunt the public mind, saying that he was going to terrorize a school as “Hell hath no fury like a crazy man in a kindergarten class.” Some of the other lyrics were extremely troubling:

There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut.

He also rapped about killing federal agents. Tara Elonis, his ex-wife, felt threatened by the song. The court had to judge “whether the threatening speaker intended to harm anyone or whether the listener was genuinely afraid of being harmed.” Nancy Leong pointed out in the Huffington Post that, “because the Internet filters out voice and demeanor cues, online statements provide less information about the seriousness of the statement, and are thus more likely to be reasonably interpreted as threats.“

Elonis didn’t seem to be too upset at first, posting on Facebook: “Did you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt … I also found out it’s incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be the cornfield behind it …”

The case is ongoing and it has incited intense emotions from both sides of the fence.

The Good

What are the benefits of having freedom of expression on social media? Surely, it is a way for some people to vent their anger without feeling self-conscious, nervous, or upset without resorting to violent actions. Everyone has a right to say what they think. We’ll never know, thankfully, if Elonis would have followed through on the threats in his rap.

Retweets, liking, or even posting your own status can be as effective as screaming at the top of your lungs at a protest. Lately, Facebook has been full of posts that educated everyone on topics relating to racism and the plight of African Americans in modern day America. There are always a few feminist pieces floating around. LGBTQ statuses, articles, and debate appear often, as well. Looking into the comments of these pieces, it is easy to see a cross section of what people believe about the topic. After all, the best way to argue for something is to know why people are arguing against it.

Social media has also become a home to those people who post positive things about topics from body-positive Instagram campaigns to equal media representation groups on Tumblr.

The Bad

To quote Uncle Ben from Spiderman: With great power, comes great responsibility. Unfortunately, many people do not understand their responsibility to fellow man. People who don’t believe in the status quo (or those who believe in the previous status quo that is now shifting to another) can stir up some pretty harsh feelings. People have the right to believe whatever they want, but these more extreme views on politics, racism, sexism, and homosexuality can start verbal sparring matches that help no one.

People have been using social media to post threats that haven’t been taken seriously for years. Stricter online controls would help alert the authorities in some cases, and even protect the innocent. Social media can be used for internet bullying, which in some cases is worse than the traditional verbal bullying. Online gossiping and social media platforms allow the bullying to continually exist–a problem for both the bully and the bullied.


Social media is one of the best inventions of the last century. It allows us to stay in contact with people we would have left behind, and it allows us to preserve our memories in a time capsule. However, it can also make or break a person depending on how someone reacts. Truthfully, the problem isn’t a freedom of speech issue, but rather one of morality. Can we take morals and apply them to the virtual world?



Supreme Court: City of Ontario, California, et al v. Quon et al

Constitution: First Amendment

Constitution: Fourth Amendment


Slate: Are Facebook Threats Real?

Huffington Post: Constitutional Rights in the Digital Age

The New York Times: Do Online Death Threats Count as Free Speech?

Salon: The Supreme Court’s baffling tech illiteracy is becoming a problem

Business Insider: This Guy’s Facebook Rants Put Him In Prison, And The Supreme Court Will Hear His Case Today

Truth Out: This Time, “Free Speech” Cannot Prevail

ABA: United States v. Anthony Elonis – Third Circuit

Index on Censorship: 10 Countries that have Social Media Banned

The New York TimesChief Justice Samples Eminem in Online Threats Case

First Amendment Center: Social Networking

Bloomberg: The 8 Most Important Cases in the New Supreme Court Term

Noel Diem
Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at



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