Analysis: What does Martin Shkreli's Facebook post tell us about free speech?


Martin Shkreli’s in jail for a Facebook post in which he called for a hair from the head of Hillary Clinton, raising some interesting questions about how American traditions of free speech extend into the world of online communications.

The jailing of “the most hated man on the internet” for a Facebook post has opened up a debate about the limits of free speech in digital spaces.

Last week, the former pharmaceutical executive Martin Shkreli was sent to jail for a Facebook post that referenced Hillary Clinton and her hair. The post, which has since been deleted, ended with: “The Clinton Foundation is willing to KILL to protect its secrets. So on [Hillary Clinton’s] book tour, try to grab a hair from her. I must confirm the sequences I have. Will pay $5,000 per hair obtained from Hillary Clinton. Payment after the sequence matches. Good luck, patrollers.”

Shkreli first rose to infamy in 2015 when his pharmaceutical company, Turing, raised the price of the HIV medication Daraprim by about 5,000 percent. Last month, after the conclusion of a month long trial, he was convicted of three out of eight charges, including defrauding investors in two hedge funds.

Shkreli was accused of securities and wire fraud related to two hedge funds he ran called MSMB Capital and MSMB Healthcare. He was charged with illegally using another pharmaceutical company he founded, Retrophin, to repay defrauded MSMB investors. He was acquitted of charges related to allegations that he stole money from Turing to pay off his hedge-fund investors.

Until the Clinton incident, Shkreli has been on bail awaiting sentencing. He faces up to 20 years in prison, although he is likely to serve much less. The former CEO is being held in the Brooklyn Metropolitan Correctional Centre, after having his $5 million bail revoked for his Facebook post. According to Judge Kiyo Matsumoto, who presided over his case, the post showed that Shkreli posed a danger to the public.

“The fact that he continues to remain unaware of the inappropriateness of his actions or words demonstrate to me he may well be an ongoing danger or risk to the community,” said Matsumoto.

The incident highlights an often disputed intersection between First Amendment rights, the nature of free speech and online threats.

One opinion writer on Crain’s argued Shkreli’s Facebook comments should be viewed as protected speech since his posts had never inspired violence. “What can be stated with certainty is that in the history of the world, never has a single Martin Shkreli supporter committed anything resembling violence against any fellow citizen in Shkreli’s name.”

In court, Shkreli’s attorney, Benjamin Brafman, argued that the post was “satirical” and should be protected as free speech. “There is a difference, however, between comments that are intended to threaten or harass and comments – albeit offensive ones – that are intended as political satire or strained humor,” said Brafman, as reported by Politico.

But Judge Matsumoto deemed the post as “a solicitation of assault in exchange for money”, which is not covered by the First Amendment. While the US arguably has strong protections over speech, not all speech is permissible under the law, including threats and the incitement of imminent lawless action.

Whether Shkreli’s post constitutes a legitimate threat is debatable. He has a long history of posting controversial items which are lacking in seriousness. He has also previously used social media to harass Hillary Clinton and other liberal political figures.

But this case is different because Skhreli was on bail which involved an agreement on the limitations on speech. By posting comments about Clinton, Shrekli violated these terms.

Incidents where bail has been revoked after controversies on social media have occurred before. In the case of the State of New Jersey vs. H.LM, courts revoked bail for the defendant in part for “disturbing” blog posts, which were a violation of the terms of his probation. In general, a primary condition of bail is that the defendant does not pose a threat to society, which the judge in this case deemed him to be.

Lewd and sometimes violent language is rampant on social media. There are plenty of examples of social media comments that could be deemed threatening, including many posts made in celebration of Shkreli’s incarceration. However, the chance of anyone being prosecuted over an online comment is unlikely, unless the intended victim is sent a direct threat

 

The Direct Threat Standard 

 “An issue on social media is if you’re speaking to particular person or group, or if you’re speaking to the world in general”, Lawrence Walters, an American First Amendment attorney, told WikiTribune.

“If a threat is made to somebody in person, it’s pretty easy to determine if somebody is threatening someone else. But if a threat is just thrown out there on social media, ‘I’d like to hurt this person, or murder this person’, and it’s not directed to a particular individual, not as an electronic message but on somebody’s Facebook wall, it’s harder to determine whether its a direct threat.”

The 2015 Supreme Court case, Elonis vs. United States, is one of the few precursors on this issue. In this case, a lower-court’s decision was overturned to convict Anthony Elonis for posting violent language directed at his estranged wife on his Facebook wall. The post that got Elonis charged was a set of rap lyrics that his defense argued was meant to be “therapeutic”.

The court failed to establish a clear rule on social media speech going forward in this case, though their ruling has provided some definition of what direct speech looks like on online platforms.

“[Elonis] was able to argue that this was not a direct threat, and that it was not intended as a threat, but just incorporated into rap lyrics”, says Walters

One of many “lyrical” posts from Elonis directed at his estranged wife, Tara Elonis (Language found on Yahoo News)

 

Under the direct threat standard, Shkreli would have likely been protected by the First Amendment had he not been on bail. Though without any clear ruling from the Supreme Court or congressional legislation, it’s impossible to say for certain.

As the largest social media platform, Facebook has been at the centre of the handful of free speech cases involving social media. Whether the same rules apply to other sharing platforms has yet to be tested in court.

Twitter, for example, allows users to send direct replies to others while staying within a public forum. “It’s a fascinating hybrid of a direct message and a generalized wall posting”, said Walters, who has advocated for First Amendment issues for over 25 years.

“If they are merely following the Twitter account, I don’t think that would be specific enough under a court precedent to constitute a direct threat, but if they were actually tagged that shows intent for the specific individual to receive the message.”

Dear Community: Is lewd speech on social media taken too seriously or not serious enough, what do you think?

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