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What does free speech look like in the digital age?

Colorado Supreme Court
Posted at 6:30 PM, May 14, 2019
and last updated 2019-05-14 20:48:52-04

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DENVER — The Colorado Supreme Court is currently considering a case that could have widespread implications for free speech in the social media age.

The case stems back to an incident between two students from two different states communicating with each other via Twitter in the wake of the Arapahoe High School shooting in 2013.

The Twitter communications became increasingly more aggressive until one student started making threats to the other, writing things like, "Let me catch you away from school you is a dead man." And, "Trust me I'm not afraid to shoot."

The tweets led to an arrest and the student, only identified as "RD," was convicted of harassment. That verdict, however, was overturned by the Colorado Court of Appeals after RD's defense team argued the tweets were not a real threat and should be protected by free speech laws.

The case is now in the hands of the Colorado Supreme Court.

Free speech and its limits

The First Amendment guarantees the right to free speech. However, there are exceptions to certain types of language, including obscenity, defamation, fraud, incitement, fighting words, child pornography, speech integral to criminal conduct and true threats.

A statement is considered a true threat when a speaker, "Means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," according to Virginia v. Black.

In the case currently being argued in front of the Colorado Supreme Court, the question is whether the student who tweeted the threats was intending then as true threats or whether it was hyperbole.

The case for free speech online

First Amendment and criminal defense attorney Dan Recht believes the student's tweets should be considered free speech and not a threat.

"I believe the Colorado Supreme Court will uphold the decision of the Court of Appeals," Recht said. "It was protected speech; it was hyperbole; it wasn't a true threat and that the teenager should not have been prosecuted."

From his interpretation of this case, the student was not making a true threat but was speaking in hyperbole, which he says should be protected.

Part of the reason he believes this should be considered protected speech is the fact that the two students lived in different areas and had never met in person before.

"There's a difference though between saying things on Twitter, where you don't even know the person that you were talking to versus standing on the playground in someone's face and making similar threats," Recht said.

He believes the fact that the two students lived in different areas and didn't know each other personally made it less of a likelihood that threats would turn into action.

Beyond that, communicating online versus in person or over the phone adds a layer of complexity since it can be difficult to determine someone's tone and, therefore, their true intention.

"Speech, if it's unclear which it is, should be protected. That should be the presumption," Recht said. "It should only be restricted in very narrow cases."

There are cases when threatening or questionable speech made online can result in a police investigation. Last month, a statewide manhunt was launched for Sol Pais, a Florida woman who flew to Colorado and bought a gun after she published questionable posts online. Pais was found dead the next day.

Recht says investigating a threat is very different from prosecuting something that might be considered free speech.

"Should someone be prosecuted for their speech like the case pending in front of the Colorado Supreme Court is a very different question than whether law-enforcement can search for somebody and try to find them and try to interrogate them — different questions, very different," he said.

Is it time to draw the line for free speech on social media?

While the Colorado Supreme Court considers the free speech case, some believe it might be time for the legal system to define better what is and is not allowed online.

For University of Denver law professor Alan Chen, the question might come down to how threats are interpreted rather than how they are meant.

There's one dispute I think that the court has to address eventually, again because we're in the age of social media, one is whether a true threat should be interpreted as the speaker's intentions or in light of the listener's reasonable fears," Chen said.

Traditionally, for something to qualify as a true threat, there is usually a face-to-face confrontation where the harm would potentially be imminent.

Chen believes the courts might eventually need to decide whether a person's fear of harm is enough to constitute a true threat.

He believes that the U.S. Supreme Court will eventually take up a case to determine what free speech looks like in the digital age and set a precedent for the future.

"It may be the type of thing that the U.S. Supreme Court will be content with letting the lower courts grapple with for some time before they address the issue head-on," he said.

While the Colorado case has the potential to set a precedent, Chen believes the issue of free speech on social media will be determined on a case-by-case basis, where individual circumstances could make all the difference between something being construed as hyperbole versus a threat.

From the Wild West to the self-regulated Internet

As the courts grapple with the question of free speech, some social media companies are starting to self-regulate content, users and some speech.

In a series of tweets last year, Twitter's CEO wrote, "We have witnessed abuse, harassment, troll armies, manipulation through bots and human-coordination, misinformation campaigns, and increasingly divisive echo chambers. We aren't proud of how people have taken advantage of our service, or our inability to address it fast enough."

The company has taken numerous steps in recent years to remove content that it deems have violated the company's terms.

"We're committed to prioritizing the safety of our users. In fact, 38 percent of abusive content that's enforced is surfaced proactively to our teams for review instead of relying on reports from people on Twitter. We will continue working to strike an appropriate balance between keeping users safe and preserving the Internet's open, free nature," a company spokeswoman said in a statement sent to Denver7.

Facebook and other companies are taking similar steps.

However, University of Colorado at Denver faculty member and lecturer Matthew Kaskavich says regulating speech might not be in a company's best interest.

"Social media has always had this sort of a financial incentive to kind of allow people to say whatever they want and have this free and open platform," Kaskavich said. "They have kind of avoided dealing with free-speech issues up until recently. That's because they want to make money."

Limiting some content or banning certain people or businesses from the site could mean losing business.

Kaskavich believes these companies hold the true power when it comes to determining what protected speech is.

"Social media companies like Facebook probably have more power in what is currently free speech than the government does," Kaskavitch said. "That is pretty incredible that somebody like Mark Zuckerberg or the CEO of Twitter has more of a say about what we can communicate and discuss not only in the United States but across the world than any supreme court justice, any legislator whether federal, state or local. That is a lot of power for one private company to have."

When these social media sites were first created, it was more of the Wild West "anything goes" mentality.

"There's really no map. This is a whole new frontier of communication, and our laws simply don't apply to this," he said. "They were not written with social media in mind and that's why we're having such a great struggle that we are."

However, Kaskavich believes that is why a group like ISIS were able to take advantage of the platform to spread their message without consequences.

With this evolving technology and how much more it is being included in people's daily lives, Kaskavich says the idea of what constitutes a threat might also be changing.

"If somebody threatens you on Facebook, a lot of people don't see a difference than someone coming up to you and threatening you to your face. The worlds between Facebook and social media and reality have blurred together," he said.

One of the complexities in companies self-regulating is that no two companies are doing things the same. Therefore, the rules of what is considered threatening speech that is not protected by the First Amendment would be applied differently on different sites.

Would a law help clear social media confusion?

Instead of allowing the courts to decide, Kaskavich says it might be the government that determines how free speech will work in the digital age by partnering with companies.

"We're just kind of waiting to see what does the actual answer look like," he said. "I think it is a combination of the companies and some form of government at the federal level coming together and saying we've got to figure out this problem out."

One of the issues of using legislation to try to determine what constitutes free speech online is that the Internet is not limited to boundaries set by states or even counties. A global platform might require a global solution.

Recht is not sure creating a law is the right way to try to answer the question of what free speech should look like in the digital age.

"You can't legislate away constitutional rights. So, you cannot through legislation say this is prohibited speech if, in fact, the constitution says that it's protected speech," Recht said. "What legislation can do is clarify what is constitutionally protected speech."

Chen also believes legislation is not necessarily the answer in this case.

An unclear future

The future of free speech in the digital age is still uncertain. Beyond that, social media is constantly involving.

The court cases and precedents that are set today might not matter in the future.

For now, it will be up to judges, and cases like the one in the Colorado Supreme Court is debating to determine how free speech should work.