There is no doubt about it, new communications technologies are forcing us to reassess whether privacy and free speech laws and conventions, invented way before such technologies could ever have been imagined, can be updated usefully, or whether we need to rethink some fairly fundamental notions we have about privacy and freedom.
Social media cases, in particular, raise huge issues regarding permissible expression. The basic idea around much liberal political philosophy is that freedoms should be respected, but only up to the point where the exercise of freedom brings harm to others. It seems that our discussions around social media expression nearly always come back to this point. And yet “harm” often is a pretty amorphous thing to grasp in this area. We need to get much more specific about what we are actually talking about, and what we are giving up on either side of the freedom/protection bargain.
Consider three types of cases: free speech as it pertains to the academy, to perceived threats of actual physical harm, and to simple workplace opinion. In the first case we might construe harm to be emotional hurt leveled against certain groups on campus; in the second case we are talking about threats of actual physical harm to particular individuals, or perhaps groups. In workplace cases, “harm” can be to specific individuals, or groups, or even to the corporate brand. In each and every one of these kinds of cases, glaring inconsistencies appear.
In terms of academia, recently the case of Sadia Grundy has brought out the familiar question: Aside from the viral outrage that one’s tweets and other social media postings might incur, what other negative effects can such pronouncements bring, especially to one’s career or chances of future employment? Grundy, who is to take a position as an assistant professor at Boston University this July, posted a number of tweets commenting on the status of race studies in America. She drew particular attention to white masculinity, calling it “THE problem for America’s colleges” to tackle. For this and other tweets, Grundy drew the ire of a host of white males and others, including the president of Boston University, Robert Brown, who expressed his concern in an open letter: “As a university president, I am accustomed to living in a world where faculty do—and should—have great latitude to express their opinions and provoke discussion. But I also have an obligation to speak up when words become hurtful to one group or another in the way they typecast and label its members.”
Here is where we see how a good idea can become problematic once one factors in bias, prejudice, politics and donors. For while this kind of expression of administrative concern about “hurtful” social media posts was exactly what people at Connecticut College were seeking from their administration after professor Andrew Pessin opined that Palestinians were like pit bulls, in need of being put down, no such statement protecting Palestinian or other students from hurt and harm has been forthcoming from the CC administration. On the other hand, we know all too well that the case against professor Steven Salaita was built entirely on the supposed harm his presence as a faculty member at the University of Illinois, Urbana-Champaign, might cause to Jewish students (in the eyes of UIUC administrators and trustees), given some tweets he posted voicing his ardent criticism of Israel’s attack on Gaza last summer. As the Pessin and Salaita cases show, certain groups are considered worthy of protection against harm and potential hurt, and others not. Here is where the key issue of power—to determine harm, to determine punishment—is patently clear. And ultimately, in terms of the academy, in each case the protection against harm has to be considered in conjunction with the harm censorship might produce with regard to the educational mission of the institution, which counts on the free flow of ideas, no matter how controversial.
The issue of “harm” and “hurt” plays an even more central role in adjudicating cases of social media expression that involve not simply an opinion, but also a perceived threat. The Supreme Court is now considering the case of Anthony D. Elonis, which offers a number of complicated issues. As the Washington Post explains,
The Supreme Court agreed … to consider whether violent images and threatening language posted on Facebook and other social media constitute a true threat to others or simply the protected rants of someone imbued with what one advocate called “digital courage.”
The court accepted the case of a Pennsylvania man who was sentenced to nearly four years in federal prison for posting the ominous photos and making the violent rants on his Facebook page against former co-workers, law enforcement officials and especially his estranged wife.
Anthony D. Elonis contends that the postings, which included the lyrics of songs by the rapper Eminem, were free speech — attempts to deal with the pain of his personal problems and not specific threats to harm anyone…
Elonis speculated about blowing up elementary schools and threatened co-workers. He posted about his estranged wife: “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.”
The Court seems unconvinced that this is protected speech, regardless of which medium is used: “Most justices appeared to agree with a government lawyer who argued that online threats should to be taken as seriously as other threats.
"‘You’re accountable for the consequences’ of your words, said Deputy Solicitor Gen. Michael Dreeben, noting that it is a federal crime to transmit ‘any threat to injure’ another person via Internet or telephone.” Elonis said his posts were meant as jokes, and that this, after all, was “art.” Here is how the New York Times represented his argument: “Several of the posts included disclaimers and other indications that they were not in earnest. He adapted one post almost wholesale from a sketch by a comedy group, The Whitest Kids U’ Know. The Halloween post ended with an emoticon of a face with the tongue sticking out. ‘Art is about pushing limits,’ he wrote. ‘I’m willing to go to jail for my constitutional rights.’”
The effect on his wife was nonetheless unmistakable: “’I felt like I was being stalked,’ she testified. ‘I felt extremely afraid for mine and my children’s and my family’s lives.’” Here is how the case was judged by a lower court:
Did his intent matter? The lower courts said no. All the prosecution had to prove, the trial judge ruled, was that a “reasonable person” would foresee that others would view his statements “as a serious expression of an intention to inflict bodily injury or take the life of an individual.”
The judge said that he did not mean to make “something said in a joking manner or an outburst of transitory anger” into a crime. But almost anyone who has ever sent an email knows how hard it is to detect those things without the cues that body language and tone of voice provide.
Mr. Elonis was convicted under a federal law that makes it a crime to communicate “any threat to injure the person of another.” The sentence was 44 months.
But here is where we have to see where “hurt” and “harm” need to be disaggregated in a much more granular manner, and again considered with regard to who wields the power to produce harm, and of course, at base is the question of who gets to judge—who can determine what a “reasonable person” is, and how they would think? Here again, prejudices and biases are sure to inform whether there was the “intent” to do harm. Whether “art” is an adequate alibi. Whether a woman’s fear for her life and her children’s should take precedence over a man’s right to express his anger and frustration. And what kind of wrong has actually taken place and what kind of punishment is truly fitting. And finally, what that punishment is actually supposed to be accomplishing.
Finally, while one might agree that free speech should not protect one from prosecution for viable threats, what about simple opinions, sentiments, jokes that do not contain threats, and how can we decide what was meant in what way? And what if the punishment is being summarily fired by an employer, without due process?
Too many people mistakenly think that the First Amendment protects them from any repercussions that might result from their social media postings. Well, it doesn’t.
In Maryland a corrections facility employee was fired for making a joke about groping: "’Visiting the prisons,’ Department of Public Safety and Correctional Services statistics chief Michael Allred posted on Facebook ... ‘Haven't been groped this much since the flight on the honeymoon ... and this is just the guards!’"; and an Ohio waitress was fired for complaining about bad tips. In 2012 the Texas Rangers were actually asked to investigate a Twitter prank, and that same year the Baltimore fire department came up with a policy governing social media expression. Conversely, in Wisconsin a bill was presented that would prohibit employers from insisting on access to employees’ or job seekers’ social media accounts. As a point of comparison, across the pond a Buckingham Palace guard was fired for posting on Facebook that Kate Middleton was “a stupid stuck-up cow.”
And in case you were wondering, the fact that these posts were on private Facebook accounts made no difference at all in determining that these employers had a right to fire the offenders. Again, if you ask what harm there is in these postings, the court has determined that these employers can act as juries and judges to determine that question. And this is more than problematic in terms of the power differentials we have been tracking throughout this article.
In closing, let’s turn back to the realm of the academy to get a sense of just how “in process” this whole issue is. After affirming that in general faculty should be protected, the American Association of University Professors has given the matter over to individual colleges and universities. It “recommends that each institution work with its faculty to develop policies governing the use of social media. Any such policy must recognize that social media can be used to make extramural utterance and thus their use is subject to Association-supported principles of academic freedom, which encompass extramural utterances.” Sounds good, but what, exactly, counts as “extramural” in this day and age? In many ways, the AAUP statement only forestalls for the moment a more comprehensive engagement with this matter. Here the real difficulty of these issues comes out. Social media, and electronic media in general, has changed everything.
Most important, it has created a whole new relationship between people with regard to expression. Everything is amplified, small opinions become large simply because of this amplification, this massification. The term “digital courage” should be complemented by others, such as: “digital recklessness,” “digital narcissism,” “digital paranoia.” Perhaps the most obvious one that more people should attend to is “digital caution.” Yet that caution also has a price.
The firing or punishment of individuals for speaking their minds on their private Facebook pages, much less on open social media like Twitter, voids social media of a power that is unique to it. Social media allows ordinary individuals a loud public megaphone; it provides everyone with a powerful instrument to speak across class, gender, national, religious divides. And that is what makes employers and others afraid. Their first defense is to say that they are acting out of concern for their other employees, or, in the case of universities, for their students and other community members. And in many cases that may be true.
But what we see in cases such as those above is that we need much more serious, and systematic, kinds of discussions around this tricky topic. Protection against actual harm and threat is absolutely necessary. But such good reasons are liable to be abused in the hands of the powerful. It may all boil down to the possibility that essentially people give up their rights as individuals as a price for being social media users.
As early as 1932, Bertolt Brecht imagined the transformation of radio from a technology supporting passive mass audiences to a medium of collective participation: “The radio would be the finest possible communication apparatus in public life ... if it knew how to receive as well as transmit, how to let the listener speak as well as to hear, how to bring him into a relationship instead of isolating him.” The question we now face is what, exactly, this new relationship brings with it.