U.S. Supreme Court Will Determine the Limits of Threatening Speech on Social Media

By: Megan J. Muoio, December 4, 2014

On December 1, 2014, the Supreme Court heard oral argument Elonis v. United States, a case involving whether a man who made threats on Facebook should be prosecuted for making allegedly “true threats” or whether his words should be protected under the First Amendment. In 2010, Anthony Elonis made several Facebook posts in which he expressed violent sentiments against his wife, who had recently left him. Elonis also reinterpreted rap lyrics to incorporate threats against his wife and posted them to Facebook. The posts continued even after Elonis’s wife obtained a protection-from-abuse order against Elonis. In response, Elonis continued to post menacing statements aimed at his wife, asking if the folded court order would be “thick enough to stop a bullet” and further insinuating that he would take action against the state police and sheriff’s department as a result. During the same period, Elonis made threatening Facebook posts about his co-workers and threatened to commit a school shooting, which resulted in his boss reporting Elonis to the FBI. (Not to be deterred, Elonis posted threatening statements against the FBI agent after the agent’s initial visit.)

Elonis was convicted and sentenced to three years in prison for four counts of making threats under § 18 U.S.C. 875(c) in connection with the threats made against his wife, the elementary school, and the federal agent. § 18 U.S.C. 875(c) makes it a federal crime to “transmit[] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” The jury that convicted Elonis was asked to apply an objective test: Elonis should be convicted if a reasonable person would view the Facebook posts as a “serious expression of an intent to inflict bodily injury or take the life of an individual.” Under this standard, the jury did not examine Elonis’ own intent when making the statements but did examine the context in which the statements were made and the reactions of the individuals against whom the statements were made. Especially salient in this analysis, for example, would be Elonis’ wife’s statements that she was afraid for her life as a result of Elonis’ Facebook posts and that she obtained an order of protection because she was actually afraid.

On appeal to the Supreme Court, Elonis argued it was his subjective intent – not a reasonable person or his wife’s interpretation of his intent – that should be used to evaluate his Facebook posts. Elonis argued that he never meant to hurt anyone and that his statements were a “therapeutic” attempt “to deal with the pain” of his situation. Under the subjective standard, statements that were not intended to be threatening would be protected by the First Amendment, even though the statements could be interpreted as objectively threatening by the person against whom they were made.

What makes this case novel is the social media element of the case. Elonis and numerous civil liberties groups who filed amicus briefs argued that online speech is frequently hyperbolic and does not constitute an actual threat of intent to harm. In addition, they argued that social media posts do not contain the typical cues or signals contained in spoken speech that would indicate whether the speaker was serious about his statements or whether they were to be interpreted as a joke or as satire.

At oral argument, however, the Justices seemed skeptical about whether the social media element of the case would change their analysis of the law, or whether the previous interpretation of the law could be applied to all types of speech, even those being conducted on new forms of media. If the Justices find the social media element of this case to be irrelevant, it is likely that they will uphold Elonis’ conviction. The Justices seemed to be more influenced by the concerns raised by various amicus briefs filed by domestic violence groups regarding the increased use of social media in domestic violence situations. Those groups argued that threats on social media platforms are often good indicators of future violent action by abusers and that a ruling in favor of Elonis in this case could make it harder for victims of domestic violence to obtain orders of protection based on social media threats.

A decision is expected in the spring of 2015.