Victory! In September 2015, the Massachusetts Supreme Judicial Court brought longstanding constitutional protections to the digital age, helping to ensure that constitutionally protected speech will not land people in jail. The ACLU of Massachusetts filed a friend-of-the-court brief in Commonwealth v. Walters, a prosecution under G.L. ch. 265, § 43 for an alleged threat made via the defendant's Facebook profile. Under the First Amendment, only serious threats of unlawful violence can be punished by law—anything that does not meet strict standard is protected speech. This is true whether the speech is made online or offline. Our brief stresses the importance of preserving First Amendment protections in the face of changing technology.
Offline, a statement is only a prosecutable as a threat if the content, viewed in the context in which it was made, conveys the intent to commit a violent and unlawful act on a specific person or group. The same legal standard applies on Facebook, even though the specific contextual clues may take new forms. In addition to showing the serious nature of the threat, the prosecution must prove beyond a reasonable doubt that the defendant intended the threat to reach the alleged victim. The fact that speech spreads more easily online does not remove this requirement. Courts must look to specific facts—including the nature and structure of online social networks—to determine whether the defendant was really targeting the alleged victim, rather than simply using a social media platform which the alleged victim also happened to use.
Our brief also urged caution in reading too much into the vast quantities of speech available on Facebook and other online forums. Online speech is much more likely to be preserved and propagated over time than offline speech. The sheer amount of speech online, and the ease with which it gets repeated, can make an offhand comment look like a serious threat, or a passing complaint look like an obsession. Furthermore, there is a real danger that prosecutors will selectively pick and choose statements to craft what appears to be a genuine threat. This is simply not permissible under the First Amendment. The ACLU of Massachusetts continues to take a strong stance that online speech deserves the same degree of respect and protection as more traditional forms of speech.