US Supreme Court Says Facebook Threats Not A Crime, But What About Selfie Pics Deemed Lustful?

Elpidio V. Peria
7 June 2015

Ars Technica recently reported that the US Supreme Court overturned the conviction of a rapper who threatened to kill his wife via Facebook and ordered a retrial to determine if the threats were made with the “subjective intent to threaten”.

As reported by the site, the rapper was 31 year old Anthony Elonis of Pennsylvania, who was sentenced to 44 months in prison for making threats on Facebook, which emulated the rapper Eminem, where he posted sometime in 2010, among others, the following :

Do you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say.

Attorneys for Elonis told the Supreme Court that the authorities never proved he intended to threaten anybody. A federal appeals court decided against him in 2013, ruling that the standard of proof is whether a reasonable person—the target of the rant—would deem the online speech threatening. Nine federal appeals courts have made similar rulings in different cases, as well.

In a 7-2 ruling, the US Supreme Court, through Chief Justice John Roberts, said (PDF) for the majority:

“Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state”.

The ruling will definitely have some persuasive, though not necessarily binding, effect on the Philippine Supreme Court, since, in appropriate cases, lawyers arguing their cases before the Philippine Supreme Court, at times cite US jurisprudence to prove their points.

Now, there is a fellow I know who asked whether his act, a variant of this threat but actually more of an invitation to a seduction, may be criminally liable according to the same US Supreme Court ruling.

The act consisted of him taking a selfie with a picture of another person wearing a two-piece bikini.

The first question that needs to be asked is : whether that selfie photo constitutes a threat to do something bad to the person on the picture?

I would say, no, such kind of photo does not constitute a threat to the person in the picture; at best, what may be construed from such photo is a kind of a worshipful desire of my friend to be seen next to the object of his affection, that person in the two-piece bikini.

Whether that worshipful desire is indicative of any other lustful or unworthy intent or what, over-all it is just an admiring photo of a fan, utterly devoid of harm to the person in the two-piece bikini, though strict moralists or feminists of the strong variety may condemn my friend for his unsavoury actions worthy of a lout, which Merriam-Webster online defines as an awkward, brutish person.

Given that it’s not such a threat, the US Supreme Court ruling will not even apply to exonerate him, but what about the Philippine Cybercrime Act, or Republic Act 10175? The Philippine Cybercrime Act, signed into law in September 2012, but parts of it were declared unconstitutional by the Philippine Supreme Court as reported by GMA News online on 18 February 2014, while some of its parts were held constitutional, particularly its section 5, which penalizes anyone who aids or abets the commission of cybercrimes and anyone who attempts the commission of cybercrimes, if the crimes involved are:

• illegal access
• illegal interception
• data interference
• system interference
• misuse of devices
• cyber squatting
• computer-related fraud
• computer-related identity theft,
• cybersex

Also held constitutional or in other words, valid and with legal effect, was Section 4(c)(4), which penalized online libel, with respect to the original author of the post but unconstitutional only where it penalizes those who simply receive the post or react to it.

Now, would any of these crimes be applicable to the act committed by my friend?

Far from it, nowhere among these enumerated acts of sec. 5 of the Philippine Cybercrime Act would apply to the act in question, even the still-contested but SC-upheld online libel, would not apply.

Under Art. 353 of the Revised Penal Code, the crime of libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead and under art. 355, libel may be committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means.

Perhaps, if one takes into account contemporary times, taking a selfie photo with a two-piece bikini picture of another person can be considered “any similar means” of committing libel, but is such act libellous, in the sense that it maliciously imputes a crime, vice or defect, or did it tend to cause dishonour, discredit or contempt of the person? My opinion would still be in the negative, and that’s not because my friend is a long-time buddy of mine, but because, factually, his act does not come in the definition of the word libel, as described above.

Now, am not sure if there’s a provision in the Magna Carta for Women (Republic Act 9710) regarding these matters, but that is another topic of another posting for another time.


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