Facebook Goes to Court

Two recent cases examine the consequences of words

Two First Amendment cases in the news give an interesting slant to the kiddy rhyme about “words can never hurt me.” In one, the Supreme Court has agreed to decide whether it should be against the law to lie about one’s military service. Back in 2007, Xavier Alvarez, newly elected to the board of the Three Valleys Municipal Water District in Claremont, California, stated in a public meeting that he was a retired Marine with a quarter-century of service and the Congressional Medal of Honor—none of which was true. (Nor were prior claims he’d been a Detroit Red Wing, married a Mexican movie star and saved the U.S. ambassador to Iran from being taken hostage. Busy guy.) Alvarez is being prosecuted under the five-year-old Stolen Valor Act, which makes it a federal crime to lie about having been awarded military honors.

Closer to home, a federal jury will decide whether an ex-worker at Dorney Park who posted violent threats against his wife, his former employers and schoolchildren on his Facebook page is entitled to free-speech protection under the First Amendment. The worker, Anthony D. Elonis, had been demoted and then fired by the amusement park, and his wife had recently left him when he put the rants on his public page. His lawyer is arguing that the writings (sample: “Y’all sayin I had access to keys for the all the f***in’ gates. … Y’all think it’s too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I’m still the main attraction. Whoever thought the Halloween Haunt could be so f***in’ scary?”) were simply attempts to write rap lyrics, and that Elonis posted disclaimers to that effect. He’s being prosecuted under a federal statute that makes it illegal to communicate a threat to harm another person.

All things being equal, I’d prefer to live in a world in which disgruntled husbands weren’t free to put up Facebook posts that threaten to “initiate the most heinous school shooting ever imagined” (and add that “hell hath no fury like a crazy man in a kindergarten class”). In truth, I’d prefer to live in a world without Facebook. But I’d also just as soon live in a country that didn’t write laws that prohibit lying about your military record. As the Ninth Circuit judge who struck down the Stolen Valor Act last year put it, “Given our historical skepticism of permitting the government to police the line between truth and falsity … we presumptively protect all speech, including false statements.” Free speech is a funny thing. Elonis could be found guilty for telling the truth, and Alvarez could be found guilty for lying.