The Supreme Court heard oral arguments yesterday in a case that could set a new precadent for online threats—one involving Texas man Anthony Elonis, who sits today in jail after posting violent, vengeful raps to Facebook back in 2010 after losing his job and marriage.
The vengeful rants that Elonis posted to Facebook talk about killing his wife and coworkers, bombing an FBI agent and attacking a class of kindergartners. He’s currently serving a 44-month sentence for using interstate communications to threaten to harm individuals. But his case has winded its way through the circuit court, with divergent opinions.
Though the debate thus far has been a lot of concerns about intent, this case could be the start of something new. It’s the first case that SCOTUS has heard regarding online freedom of speech and harassment, and could make way for how courts deal with threats over social media: should online threat cases be treated like criminal law, which requires clear proof of intent to do harm—or or would a reasonable person be enough to qualify the statement as legitimate wrongdoing?
The original Supreme Court decision on threatening language came in 1969, in Watts v. United States, when the Internet was only a twinkle in its creators’ eye. The court ruled that “true threats” were not protected under the First Amendment, and, as such, could be prosecuted. But Elonis and his defenders claim that the posts were a therapeutic outlet in the style of the rap music he listened to, which he often linked to at the ends of posts. He argued that he never intended any harm anyone but just needed to blow off steam in his depressive state.
Which is where the 2003 SCOTUS decision in Virginia v. Black is important: it clarified Watts to note that the speaker communicate an intent to act, in order to be considered a “true threat.” As Matthew Izzi writes for LegalMatch, Elonis could serve as a sort of follow up to Virginia:
At the core, the Supreme Court should be clarifying when a threat really is a threat. According to Virginia v. Black, one of the flagship cases for true threats, the speaker need not actually intend to follow through with the threat. Indeed, the lack of First Amendment protection over true threats is to protect people from fear of the possibility of violence.
This offers little clarity on when words lose protection and become criminal in nature. In fact, courts across the country seem to pick and choose, on a case-by-case basis, whose intent and perception matter when applying a standard. Some look towards the subjective intent of the speaker, where others look towards whether the reasonable person receiving the message would feel threatened. Even where courts settle on a “reasonable” standard, they struggle to apply a consistent standard of reasonableness—for instance, is it the reasonable listener, or the reasonable speaker?
Which is where the lower courts were split: the Third Circuit upheld the conviction, stating that if Elonis’ wife perceived a threat that was enough, while the 9th Circuit sided with Elonis, ruling that without intent it fell under a first amendment issue. Much of SCOTUS’s discussion from Monday’s session debated the finer points of how much proof of intent should be required. Though the judges seemed wary of wading into technology angle of it, the lawyers did not.
Elonis’ lawyer John Elwood stated that “reasonable person” language could easily be flipped around onto Ferguson protesters posting images of police officers next to quotes from Thomas Jefferson about the tree of liberty being refreshed by the blood of tyrants. Deputy Solicitor General Michael Dreeben argued that “the speaker chooses their audience.” If an individual posts threatening language to their public Facebook page, that a “true threat” might be considered even when that wouldn’t be true of choice words spread to a few friends offline, similar to the case of Justin Carter. The (then) 19-year-old Texan who made an off-color joke about shooting up a kindergarten over an argument on Facebook, proved that bad taste could land you in hot water–intent or no. As Travis Crabtree writes for eMedia Law Insider:
The main issue in this case is hilited — Intent. It is not clear whether the prosecutor is going to try and prove a violation of 4, 5, or 6 (we know they are pressing for a third degree felony), but does it really matter? Can anyone prove, beyond a reasonable doubt, Justin intended to scare anyone or get law enforcement involved.
There are real threats made on social media and elsewhere. People that make bomb threats or take other actions meant to scare targeted people or waste law enforcement’s time should be prosecuted. People who have bad taste shouldn’t.
Carter is currently out on bail, awaiting a trial for his comments.
Back to the case at hand, if SCOTUS affirms that the specific threats made by Elonis do constitute a crime–regardless of whether they’re made on a website or a lyric sheet–the court could send a forceful message about cyber-bullying and online harassment, a growing concern in many communities. The result won’t come until at least 2015, but there will be many eyes watching–both online and off.