U.S. Supreme Court Hears Arguments on What Constitutes a Threat on Facebook

The U.S. Supreme Court heard arguments this month on what constitutes a threat on Facebook.  The case is an appeal by Anthony Elonis, who was convicted of making threats against his wife and an FBI agent.  Here is one of his posts:

There's one way to love ya, but a thousand ways to kill ya,

And I'm not going to rest until your body is a mess,

Soaked in blood and dying from all the little cuts.

Hurry up and die bitch.

In another post, made after his wife obtained a restraining order barring him from threatening, harassing or contacting her, even indirectly, Elonis wrote:

Fold up your protective order and put in your pocket.

Is it thick enough to stop a bullet?

The next day, he followed up with a post saying he was ready to "make a name for himself" with "the most heinous [elementary] school shooting ever imagined."

 Hell hath no fury like a crazy man in a kindergarten class,

The only question is...which one.

That resulted in an FBI visit to his home, which in turn prompted this post:

Little agent lady stood so close

Took all the strength I had not to turn the bitch ghost.

Pull my knife, flick my wrist, and slit her throat.

Leave her bleedin' from her jugular in the arms of her partner.

At his trial, Elonis noted that he expressly said on his Facebook page that he was only exercising his First Amendment rights and that he had provided links to a comedy sketch about the nature of threats and rap songs by Eminem.  He was convicted and sentenced to 44 months in prison.

Elonis has argued that a jury has to find both that a reasonable person would interpret the words as threatening and that he actually intended his words to be threatening.  His lawyer said that Elonis’ posts were “venting” and not to be taken seriously.  He described the posts as a “therapeutic” way for Elonis to deal with his troubles.

Federal prosecutor Patrick Fitzgerald sees the facts differently.  He points out that most of the posts occurred after Elonis' wife had a protective court order and that he reasonably foresaw her reaction.  Fitzgerald said Elonis had been “trying to get inside her head” and make her fear that she was at risk of violence.  He rejected the comparison to rap fantasies, arguing that you can't have "this little out where you dress up a threat as being rap lyrics" and are allowed to "terrorize people."

In an interview with NPR, a vice president of the National Network to End Domestic Violence expressed concern about the requirement of proving intent, noting that "stalking statutes all over the country” were based on a reasonable person standard.  Most amicus briefs filed in the case, however, argue that the case has serious implications for free speech rights and artistic expression.

Sources

1.       Totenberg, N., “Is A Threat Posted On Facebook Really A Threat?” NPR, 1 Dec. 2014.  Web 2 Dec. 2014.

2.       Kendall, B., “When Do Social-Media Threats Become Criminal Acts?” The Wall Street Journal, 1 Dec. 2014. Web 2 Dec. 2014.