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.
My Take
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)?
