EDITORIAL: IS SPEECH REALLY FREE?

Most of us, in our everyday lives, deal with social media to one extent or another.  For those of us who work in the music industry, social media has now become a mainstay of communication; it is no longer an option whether or not to participate—participation is mandatory.  Indeed, no better example of this electronic evolution is more apparent than the rise and success of the boy-mega band, One Direction.  Unlike more typical methods of reaching fans, 1D quickly formed its legion (or “Directioners”) via social media outlets such that in the group’s early years radio stations were inundated with requests to play the band’s material before they even had the band’s record.  Now, Directioners follow the band’s every move c/o Twitter, Instagram, and Facebook, and the amount of comments and sharing is staggering.   Indeed, 1D is arguably the first mega band to be created and marketed completely via social media.

However, there is a drawback to this method of communication.  Unlike the “old” days when marketing came to the consumer and the consumer could really not respond (absent letter or phone call), today’s “fan” or consumer is somewhat engaged.  “They” have the ability to post too; “they” can also comment somewhere.  So, that begs the question of how do we, as a society, govern this relatively new form of communication called “social media”?  The rules become even more heightened in the music field where our very being is based on our means of expression, no matter how extreme or bizarre.  So, we now ask can anyone post anything they want whenever they want?  Are there limits?  If the statement appears in the form of a “lyric” does that insulate the poster from trouble?

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As a society it appears to me that we are still figuring this out and that is why we need to carefully pay attention to important decisions which will guide the way we communicate as well as how we communicate.  One of these decisions is United States v. Elonis which is currently before our United States Supreme Court.  The case was argued in December of last year and we are awaiting a decision from the nation’s highest court.  Once decided, this ruling (amongst others) will hopefully provide us with some guidance as we enter this “social media”/digital age, or will it?

Elonis is about a Pennsylvania man’s conviction for making threats on Facebook.  After Elonis’ wife left him he began to act in a bizarre fashion and in 2010 he was fired from his job.  What followed were various Facebook posts offered as rap lyrics.  Many of the lyrics had violent themes although disclaimers were made that the lyrics were fictitious.  Some of the posts included:

• A photograph of Elonis and a co-worker at a Halloween event where Elonis is seen holding a toy knife to his co-worker’s neck.

• A post in which Elonis said (about his ex-wife): “If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.”

• An adaption of a sketch by the “Whitest Kids U’ Know” comedy troupe wherein a member of the troupe explains it is illegal to say you wish to kill the president, but not illegal to explain that saying so is illegal. Elonis included the statement that “I’m willing to go to jail for my constitutional rights.”

•A mockery of a “protection from abuse” order Elonis’ ex-wife obtained against him which included the statement: “Fold up your PFA and put it in your pocket Is it think enough to stop a bullet?”

•A post about local schools: “I’m checking out and making a name for myself Enough elementary schools in a 10 mile radius to initiate the most heinous school shooting ever imagined.”

•A “note” titled “Little Agent Lady,” styled as a rap song, suggesting Elonis was wearing a bomb during a visit by an FBI agent to his house, with the “note” stating: “Pull my knife, flick my wrist and slit her throat Leave her bleedin’ from her jugular in the arms of her partner.”

Elonis ultimately claimed that whatever he said were not “true threats.”  That didn’t work and he was convicted of a federal law and was sentenced to 44 months in prison along with three years of supervised release.  This case is a relatively new breed of “hate speech” which interconnects criminal activity and the First Amendment.  If you were curious the issue which is up on appeal, which apparently is Elonis’ defense, it is whether we judge this kind of “hate speech” by what the person saying it meant (i.e., Elonis) or, what a “reasonable person” would think it means.  The distinction is critical; if the test is what the posting person actually “meant” that’s a lot harder to prove and that will lead to a broader scope of what a person can say.  If the test is what would a “reasonable” person would think, that’s a lot easier to prove and that will lead to an arguably smaller scope of what a person can say.  The difference is huge.

Here’s my point.  Some decision has to be made about what to do with instances like this.  The point being is that we have to recognize that we are changing quickly as a society and that we have to do something about this social media craze; artist or not.  These are no longer the days that people (or artists for that matter) are restricted in getting their views out there; instead, with each year people and artists are given a new medium through which to express themselves and to communicate that expression to thousands with the click of a button.  One does not need to be a “celebrity” to achieve social media status anymore.  Although I draw frequently on that infamous line from Rush’s epic song Freewill (“If you choose not to decide, you still have made a choice”) this is not one of those instances.  We cannot do nothing; we have to move one way or the other—right, wrong or indifferent.  I admit that this is a tough call because basically in Elonis someone’s repeated threatening Facebook posts amounted to a federal crime and a lengthy prison sentence.  But is this where we need to be?  Was that the right result?  Depending on your point of view, perhaps it was.

There’s one thing for sure.  We all need guidance.  Now.  And this should not come from the social media companies themselves or the general media which sometimes propagates agendas which are driven by ratings.  As a society we need to decide what is acceptable and what is not.  For now, the courts have it.  Let’s see what they do and then make our decision.  I guess if you aren’t happy you can always post something somewhere.

Ken “K Bo” Biedzynski

Editor

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