by Tracey Mendrek, Executive Vice President

Most people know December 1 as Cyber Monday, but in reality it is the beginning of a legal case that may change the way we navigate social media. Elonis vs U.S. is scheduled for oral arguments on December 1.

As The Washington Post notes in an excellent article by Robert Barnes, “Supreme Court Case Tests the Limits of Free Speech on Facebook and Other Social Media” there is reason for all of us to be concerned. The question facing the justices is whether a random post on social media platforms that is scary, threatening or otherwise menacing should be used in a court of law to decide innocence or guilt.

Facebook has long been the home of “happy” thoughts, emoticons and all, but it is also filled with darker posts that often leave people wondering the true intent of the post. And that is the issue, determining true intent, especially when focused toward a seemingly innocent person.

Anthony Elonis was sentenced to a 44-month prison term, of which he served just over three years, when a jury decided that his rants on Facebook were a serious threat to his wife and law enforcement officials. At issue here is whether those rants were truly life threatening or not.

According to the article, “The issue is whether Elonis should be prosecuted for what he says was simply blowing off steam — “therapeutic efforts to address traumatic events,” as his brief to the court says — because what matters is not his intent but whether any reasonable person targeted in the rants would regard them as menacing warnings.”

There are major players representing both sides in this case. For the defendant, who is already serving time with evidence from his Facebook post, the Student Press Law Center (SPLC), the Electronic Frontier Foundation and PEN. SPLC’s mission statement says that: “The Student Press Law Center is an advocate for student First Amendment rights, for freedom of online speech, and for open government on campus. The SPLC provides information, training and legal assistance at no charge to student journalists and the educators who work with them.”

On December 1, while contemplating the perfect gift, also consider your First Amendment rights, which represent the pinnacle of freedom in the U.S. No matter which way the Supreme Court ruling comes down those rights will be affected. Justice may depend on reading between the emoticons and the lines to decide intent and therefore innocence or guilt.