Social media

Investors of modest means are now going to be able to take a chance on startups the way that venture capitalists and angel investors can, The New York Times' Stacy Cowley reports. Companies seeking to raise up to $50 million--even though they are not yet publicly traded--will be able to advertise to investors online and through social media. Under the old regulations, companies that didn't want to have to file reports with the Securities and Exchange Commission only could sell shares to "accredited investors with an annual income of more than $200,000 or a net worth of at least $1 million."

The U.S. Supreme Court has made it harder for prosecutors to convict people who make threats on social media, The Washington Post's Robert Barnes reports.

Petitioner Anthony Elonis was convicted of threatening to kill his estranged wife, law enforcement officials and a kindergarten class through Facebook posts written in a rap lyric-esque way; he was convicted under a federal law that makes it a crime to communicate '''any threat to injure the person of another.'"

But the high court, in a narrow opinion, said that Elonis' state of mind had to be considered, Barnes reports. The majority of the justices rejected the idea that a poster's intent is immaterial in judging whether he or she has stepped outside the bounds of the First Amendment and truly threatened others. Lower courts have found that what matters is only if a reasonable person would interpret the words as a threat.

The court's narrow ruling leaves it up to the lower courts to develop exactly what standard should be applied to determine if a poster has made a true threat.

The U.S. Supreme Court currently is considering the standard that should be applied to judge whether someone has stepped outside the bounds of the First Amendment and truly threatened others. Kevin Reed, a magistrate judge in Memphis, wrote in the Washington Post today that the justices should apply an objective standard, not a subjective standard, to true threats. If a subjective intent standard is applied, then prosecutors would have to prove that a defendant purposefully intended to threaten a victim, leaving them in the untenable position of trying to prove something that exists only in a defendant's mind, Reed says. "Abusers are keenly aware that victims never really know if their threats are serious or not," the judge concludes. "Ultimately, their objective is to keep victims guessing about whether they are in real danger. The Supreme Court should refuse to protect this manipulative behavior."

SCOTUSBlog's Amy Howe reports that, after oral argument in the U.S. Supreme Court today, there is no clear path for victory for Anthony Elonis or the federal government in a case testing the First Amendment boundaries of "true threats." At issue is whether Elonis' criminal liability for his violent, rap-like Facebook posts should be judged by whether he intended to place his ex-wife, an FBI agent and others in fear or if a reasonable person would perceive his posts as truly threatening.

Whether a subjective standard would actually protect more speech is an open question. In fact, Howe notes, "Justice Sonia Sotomayor was puzzled about whether there was actually any difference between the two standards. If you can infer someone’s state of mind from the circumstances 'of how and what was said in words,' she asked, isn’t the jury really looking at what a reasonable person would think anyway?"

Chief Justice John Roberts asked if the government's standard might result in prosecutions for violent rap lyrics and "did not appear" satisfied by the government's answer that rap artists wouldn't face prosecution because they are in the business of entertainment, Rowe further reports.

Justice Elena Kagan suggested a middle ground of a recklessness standard.

Journalism professor Will Nevin writes about the U.S. Supreme Court case, United States v. Elonis, that'll be heard in oral argument this week. At issue is whether a conviction for making "true threats" on-line requires that the speaker subjectively intended the threat or if a reasonable person would objectively view their speech as a threat. Anthony Elonis says he was writing rap songs and satire instead of wanting to make his estranged wife, law enforcement, coworkers and others fear for their safety.

Matthew D. Bunker, a professor and media law expert in the University of Alabama's College of Communication and Information Sciences told colleague Nevin that true-threat jurisprudence is "'not a fully developed area of the law. There are a few broad pronouncements from the Supreme Court, but I don't think the court has worked out the intricacies of the doctrine.'" Ronald Krotoszynski, a constitutional law professor at the University of Alabama School of Law, asked why Elonis should escape liability for threats made through speech when he would face liability for brandishing a gun, but Woodrow Hartzog, an associate professor and media and privacy law expert at Samford University's Cumberland School of Law, warned that a ruling against Eloni could limit more speech than is necessary.

The Washington Post's Robert Barnes has a preview of arguments next week in the U.S. Supreme Court in the case of United States v. Elonis. Anthony Elonis made several threats on Facebook in rap-style lyrics toward his estranged wife, law enforcement, schoolchildren and co-workers, and he was convicted in federal court of making "true threats" toward most of those people. At issue in the Supreme Court is whether the test for proving someone guilty beyond a reasonable doubt of making a true threat should be whether they subjectively intended to make good on the threat or if a reasonable person would view the speech as a threat. At issue are " the unique qualities of social media," Barnes writes. "In this rapidly evolving realm of communication, only the occasional emoticon may signal whether a writer is engaging in satire or black humor, exercising poetic license, or delivering the kind of grim warnings that have presaged school shootings and other acts of mass violence."

The U.S. Supreme Court will be getting an education on "the rhythmic, slangy — sometimes violent — poetry of rap music" as it considers the standard by which violent speech can be judged as a true threat this term, The National Law Journal's Tony Mauro reports. Elonis v. United States, which is set for argument December 1, "asks whether the online posting of threatening language like that found in rap lyrics violates a federal law against transmitting 'any threat to injure the person of another' across state lines," Mauro further reports. Anthony Elonis was convicted of threatening law enforcement, his spouse and others from the rap-like posts he made on Facebook. Elonis argues that pure speech must be judged by a subjective intent standard, but the government says it only needs to prove that a reasonable person would view speech as a true threat.
 

Clay Calvert, a communications professor at the University of Florida in Gainesville, writes in the Huffington Post about the case of a Kentucky man who was arrested for allegedly making terroristic threats and supposedly threatening to kill students when he posted lyrics by the metal band Exodus on his Facebook page. According to the band, the song with lyrics like '"student bodies lying dead in the halls, a blood splattered treatise of hate'" was inspired by the Virginia Tech shooter Seung-Hui Cho and was not meant to endorse mass shootings. As Calvert notes, the U.S. Supreme Court is going to hear a case this fall involving Anthony Elonis, who was sentenced to federal prison for his violent postings on Facebook. Elonis said they were therapeutic rap lyrics, but a jury found an objectively reasonable person could view them as threats.

The U.S. Supreme Court has granted certiorari in a criminal case involving the free speech rights of a criminal defendant who used threatening language in the form of rap lyrics on Facebook, the Associated Press reports.  (I covered the trial of Anthony Elonis when I worked for the Legal Intelligencer, Pennsylvania's legal newspaper.)

Federal prosecutors successfully got the district judge to apply an objective standard for the jurors to decide if Elonis' posts were threatening, but Elonis' counsel argued that a subjective standard should have been applied, AP reports.

The U.S. Supreme Court has said that "true threats" are not protected speech, AP also reports.

Clay Clavert, a communications professor at the University of Florida in Gainsville, argues in a Huffington Post piece that the U.S. Supreme Court should take up a Pennsylvania case in which rap  lyrics were used as evidence in a criminal conviction. Anthony Elonis was convicted in federal court in Philadelphia for posting rap lyrics containing threats of violence on Facebook.

True threats are not protected by the First Amendment, just like obscenity, child porn and fighting words, Clavert writes. At issue in those Pennsylvania cases is how social media affects the analysis of what constitutes true threats, Calvert further writes: "Will people discount or treat less seriously speech posted on Facebook or a video uploaded to YouTube than they would in-person or in a traditional medium such as newspapers or television? The Court never has considered how the nature of online media affects a true threats analysis."