Are Threats Made On Social Media Free Speech?

Posted: Jun 16, 2014 12:14 PM

"There'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."

This online posting and others by Anthony Elonis in 2010 made his estranged wife fear for her life. The Supreme Court on Monday agreed to take Elonis' case to decide whether violent threats made on social media where the speaker's intent is not clear constitute free speech. Elonis also made threatening statements online about an FBI agent investigating his actions.

Elonis' wife obtained a "protection from abuse" order against him. He was arrested and given a 44-month sentence in addition to three years' supervised release. His prison term ended in February.

Elonis claimed that he never meant to carry out the threats and that he intended the words as rap lyrics to relieve his frustration when his wife left him, but a federal appeals court rejected the claim. The jury was instructed that Elonis could be found guilty if a reasonable person would find his posts threatening.

However, Elonis' lawyers argue that a subjective standard should be applied, since postings on the Internet can often be misinterpreted out of the context of the smaller audiences for which they are usually intended. The Obama administration stated that requiring subjective proof would undermine the federal law prohibiting threats.

The Supreme Court will decide whether conviction of threatening another person "requires proof of the defendant's subjective intent to threaten."

The court's precedent for cases involving threats is the 2003 Virginia v. Black case in which the court ruled that a state law equating cross-burning with intimidation was over the line. It sparked a split between lower courts on the definition of a threat, with some adhering to the accused's subjective intent to threaten. However, most courts agree on the standard of a reasonable person's objective interpretation.

The Justice Department supports the federal court's ruling, explaining that the federal law's motive is to not only prevent real violence but also to avert the fear associated with such threats.

Hopefully the Supreme Court will uphold the federal court's ruling; Elonis' lawyers' claims that his statements could have been misinterpreted are weak especially since his rants escalated after his wife took action against him. Writing poetry or rap lyrics to vent frustration is fine, but when such words become malicious and dangerous and publicly available, it's no wonder Elonis's estranged wife felt threatened. It seems pretty likely that Elonis wasn't just relieving stress through a creative outlet; he probably wanted his wife to feel scared.

If the Supreme Court reverses the federal court's decision, it will make potential victims like Elonis' wife feel even more helpless that their perpetrators won't be punished even when their threats are in plain sight.