I am sure you are all very familiar with a case currently in front of the Supreme Court because it has been all over the news and involves something we all care very much about. Free Speech, and how if/how/when we need to rethink it for social media. Tom Merritt, the host of the Daily Tech News Show, gave my favorite quote on the subject when he said (paraphrasing because I don’t remember the exact wording) “Just like we used to have online shopping and regular shopping and now we just have shopping – we used to have online speech and in person speech and now we just have speech.” (update: Tom replied that it was Justin Young who said this on his show). We need one rule for everything now.
In the case in front of the Supreme Court, a man posted threatening language towards his wife on social media. He claims that they were rap lyrics, therefore art, and therapeutic for him to release his anger and frustration. He had no intention to follow through on any of it. But the wife felt threatened. So were these threats or not?
As with all Supreme Court cases, their deliberations are not really about this specific case, but about the way the case is resolved. What standards do we use to decide if speech is threatening when it posted in a social media channel that is open to the public? For example, anyone can follow you on Twitter. If you post something that could possibly sound threatening, especially to someone who doesn’t know you, there is bound to be someone on Twitter who interprets it as threatening. If this is the standard it could cripple what we are willing to say out of fear of going to jail for it. But if we say that it is only threatening if the speaker intends it to be, then anyone can say anything. As several of the Supreme Court Justices noted – how can we read someone’s mind? With the epidemic of online bullying already a problem, we can’t settle for this as the standard either.
The key decision the Supreme Court is making is whether the threatening nature of speech should be evaluated using a subjective standard or an objective standard. Using a subjective standard, the question is what the person intended. This is where the question about how to read someone’s mind emerged. Anyone who has done an incident investigation or a field test debrief knows what this is like and how hard it is.
It is the objective standard that I want to highlight today. It seems to be the way the Justices are leaning so this is likely to become the legal standard. It is also where I think professionals in our field can be most useful. The most appropriate way to apply an objective standard is to think about the channel, the range of users who are likely to be on that channel, the backgrounds of those users, the types of activities they might be using the channel for, and the frame of mind these users will be in when using the channel. That sounds like persona-based user research to me. Isn’t that what we do?
So let’s imagine that I posted some threatening words right here. “Hey Frankie Clarkson – I’m going to kill you. You better sleep with one eye open tonight, man.”
Could you apply your standard method for persona-based user research to this situation? The readers of the blog come from a variety of human factors backgrounds. They are mostly here because they are interested in human factors topics and probably just open up the post if the title sounds interesting. They are of higher than average education. They are not expecting any personal communications to be here. So if Frankie Clarkson is a member of the described user group, is reading this post, and is a reasonable person, what would happen if he saw those words? Would it be reasonable for him to interpret them as personally threatening?
Could you decide? Could you testify to a reasonable degree of human factors certainty (often benchmarked using a "more likely than not" standard for civil cases and "beyond a reasonable doubt" for criminal cases)?