When Is An Online Threat Considered a Crime?

Motivated by the relative obscurity and safety of an anonymous internet identity, people are often quick to post malicious rants on social media websites. Many of these faceless individuals would never dream of repeating these comments in person, especially in front of a largely unknown audience.

When does offensive, violent or threatening language cross the (digital) line and become a crime? Can a threat be determined by an objective standard alone, or does the First Amendment require greater scrutiny of the author’s state of mind?

These are issues that the United States Supreme Court will address when it hears the case of a man prosecuted for sharing a number of disturbing status updates on Facebook for others to see. The court will answer the question of whether a conviction for threatening another person online under federal law “requires proof of a defendant’s subjective intent to threaten.”

Elonis v. United States, Docket No. 13-983

Anthony Elonis, a Pennsylvania man, was sentenced to nearly four years in prison after posting violent content on his Facebook page directed at his estranged wife, federal agents and former co-workers.

In a U.S. district court, Elonis was convicted of publishing an interstate communication containing “a threat” to injure the person of another, pursuant to federal law under 18 U.S.C. § 875(c).

In one of Elonis’ tirades, he posted “[t]here’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts,” referring to his ex-wife. Another post read, “Little agent lady stood so close, took all the strength I had not to turn the (woman) ghost. Pull my knife, flick my wrist and slit her throat.”

A federal appeals court upheld his conviction, rejecting his claim that he was merely exercising his First Amendment freedom of speech rights. The trial court instructed the jury that they were to apply an objective “reasonable person” standard when considering Elonis’ statements. Instead, Elonis’ attorney contended that the message must be reviewed subjectively, given the impersonal nature of online communication.

Were The Defendant’s Posts True Threats?

In Watts v. United States, 394 U.S. 705, 708 (1969), the Supreme Court held that the First Amendment doesn’t protect a “true” threat. Under an entirely objective standard, the government must prove that a reasonable person would take the threat as real.

However, courts have split on whether general intent is sufficient in a criminal threat prosecution. For example, the U.S. Ninth Circuit Court of Appeals held that federal threat laws “logically require a showing of a subjective, specific intent to threaten.” (United States v. Twine, 853 F.2d 676 (9th Cir. 1988)). The Supreme Courts of Massachusetts, Rhode Island and Vermont have agreed with this approach.

Similarly, California Penal Code § 422 prohibits the act of making a threat to commit a crime causing death or serious injury “with the specific intent that the statement…is to be taken as a threat.”

There is little debate that Elonis painted a graphic picture of his ex-wife and others suffering excruciating deaths. However, whether he intended to cause anyone actual harm appears to be open to interpretation.

What is it about a threat that distinguishes it from otherwise constitutionally protected speech? Does it depend only on how the message is received by a “reasonable observer?” Or, does the First Amendment demand proof of the author’s subjective intent, in order to avoid producing a chilling effect on our right to express our deepest, darkest and even disturbing thoughts?

How Should the United States Supreme Court Decide?

In reconciling the debate between a threat’s objective and subjective context, the Supreme Court faces a daunting task. Either way, the decision would have long-lasting implications.

Advocating violence in public forums, whether anonymously online or in front of a large crowd is unwise, unsettling and frightening. Yet, threats are by nature emotionally charged and emotion can rarely be universally objectified. Accordingly, contemplating the alleged threatener’s state of mind during criminal proceedings does more to uphold the First Amendment freedoms we collectively enjoy without limiting our ability to condemn individual speech.

Written by Paul J. Wallin, Senior Partner, Wallin and Klarich