Supreme Court Hears Online Threat Free Speech Case

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 24, 2014

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This week the Supreme Court will hear arguments in a case that could impact how states criminalize potentially threatening messages delivered via social media platforms like Facebook and Twitter.  A constitutional challenge from a man convicted in Pennsylvania for posting violent messages about his ex-wife on Facebook will ask the Supreme Court to consider whether laws criminalizing online threats require prosecutors to prove the intent of the offending post or simply demonstrate that a reasonable person would be threatened by aggressive social media speech.

Pennsylvania Man Convicted for Threatening Facebook Posts

Appeal to the Supreme Court comes from Anthony Elonis who was convicted after jurors determined that suggestive and violent statements made about his ex-wife on Facebook constituted a “true threat” under Pennsylvania law.  After his wife and children left him, Elonis initiated a campaign of threatening posts against coworkers and his ex that not only cost him his job, but landed him in police custody.  Specifically at issue during his trial were a number of posts that closely resembled the style and content of lyrics by his favorite rap artist, Eminem. In one message to his ex-wife, Elonis’ words closely mirrored the rapper’s hit song “Kim” by saying, “If I only knew then what I know now, I would have smothered [you] 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.”

Upon his arrest, Anthony Elonis was accused of issuing criminal threats to his wife, children, coworkers, and a FBI agent.  Although Elonis claimed that he was merely venting his frustration at the severe downturn his life had taken, and did not intend to carry out any of the perceived threats, Pennsylvania prosecutors felt his online posts deserved to be taken seriously due to their extreme and explicit content.  At trial, jurors were instructed to convict if the prosecution proved that a “reasonable person would view the Defendant’s postings as a serious expression of an intention to inflict bodily injury or take the life of an individual.” 

Using this standard, which does not require prosecutors prove actual intent of threatening behavior, jurors were able to convict Elonis and sentence him to 44-months in prison.  In appealing his conviction, Elonis argued that the reasonable person standard of evaluating online threats applied by Pennsylvania law violates the First Amendment to the Constitution because it is too broad in its criminalization of speech.

First Amendment Concerns over Online Threat Law

While there is no doubt that Elonis crossed the line of decent and acceptable speech, his First Amendment concerns are not without merit, particularly in a world where online communication is increasingly common.  Without the same vocal or facial cues that put in-person or telecommunicated speech in proper context, online posts are more easily taken at face value because it is difficult to discern exaggeration, sarcasm, or harmless ranting.  Throughout his criminal trial, Elonis maintained that he never intended to follow through on his threats, which were merely inappropriate expressions of anger and frustration conveyed through an online medium.  Elonis argued on appeal that by allowing jurors to evaluate how a reasonable person would interpret the threats and not concern themselves with proof of violent motivation or intent, Pennsylvania broadly restricted Free Speech.

Elonis’ federal challenge to online threat laws that do not require prosecutors show intent in order to earn a conviction has garnered national attention because of the prevalence of social media communications, and the tendency to use the internet as a vehicle for venting frustration and issuing proclamations that have no basis in reality.  The detached natured of online speech emboldens extreme comments, and supporters of Elonis’ argument have pointed out that the Supreme Court has found that only “true threats,” defined as “those statements where the speaker means to communicate a serious expression of an intent to commit . . . unlawful violence,” to be constitutionally unprotected.

The Supreme Court’s definition of “true threat” requires some exploration of the speaker’s intent, meaning that Elonis’ prosecution would be insufficient if the Justices adopted a similar standard for online postings. While no one is defending Elonis’ actions, he has earned supporters because proponents of Free Speech find the standard for proving legitimacy of an online threat employed by Pennsylvania law to be too broad in the expression that it criminalizes.

Limitations of Free Speech

Historically, Free Speech has not been without limitation, and defenders of Pennsylvania’s reasonable person standard of perceiving the seriousness of an online threat argue for necessity of precaution when faced with criminalizing violent social media posts.  According to a brief filed by the National Network to End Domestic Violence, victims of abuse can experience real-life terror from targeted social media posts threatening violent or deadly behavior.  Supporters of the reasonable person standard argue that, although Free Speech is a critical right, forcing prosecutors to prove intent of violence downplays the impact internet threats have and would allow criminal behavior to go unpunished.

The case is critically important to the future of online communications, and will provide a landmark decision how states can criminalize social media behavior going forward.  The Supreme Court has addressed threatening communications before, but this will be the Justice’s first significant movement on when states may prosecute social media commentary.


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