Outside the Beltway

Supreme Court To Try To Draw Line Between Free Speech Online And Criminal Threats

Next week, the Supreme Court will be asked to determine the line between free speech online and criminal threats

Doug Mataconis · Friday, November 28, 2014 · 15 comments

On Monday morning, the Justices of the Supreme Court will jump right back into work with a hearing in a case involving an estranged husband and wife, Facebook, and the question of when a post made on a social media network like Facebook that would ordinarily clearly be protected by the First Amendment crosses the line into an illegal threat:

About a week after Tara Elonis persuaded a judge to issue a protective order against her estranged husband, Anthony, her soon-to-be ex had this to say:

“Fold up your PFA [protection-from-abuse order] and put it in your pocket

Is it thick enough to stop a bullet?”

Anthony Elonis didn’t deliver the message in person, by phone or in a note. Instead, he posted it on his Facebook page, for all to see, in a prose style reminiscent of the violent, misogynistic lyrics of rap artists he admired.

In its first examination of the limits of free speech on social media, the Supreme Court will consider next week whether, as a jury concluded, Elonis’s postings constituted a “true threat” to his wife and others.

The issue is whether Elonis should be prosecuted for what he says was simply blowing off steam — “therapeutic efforts to address traumatic events,” as his brief to the court says — because what matters is not his intent but whether any reasonable person targeted in the rants would regard them as menacing warnings.

Parties on both sides of the groundbreaking case are asking the court to consider the unique qualities of social media. In this rapidly evolving realm of communication, only the occasional emoticon may signal whether a writer is engaging in satire or black humor, exercising poetic license, or delivering the kind of grim warnings that have presaged school shootings and other acts of mass violence.

Elonis, who has served prison time for his Facebook posts, and some of his supporters say the court must look beyond incendiary content to discern the writer’s intent.

“Internet users may give vent to emotions on which they have no intention of acting, memorializing expressions of momentary anger or exasperation that once were communicated face-to-face among friends and dissipated harmlessly,” said a brief filed on Elonis’s behalf by the Student Press Law Center, the Electronic Frontier Foundation and the writers organization PEN.

Domestic violence experts, on the other hand, say social media has become a powerful tool for dispensing threats.

Victims of domestic abuse, according to a brief filed by the National Network to End Domestic Violence, “have experienced real-life terror caused by increasingly graphic and public posts to Facebook and other social media sites — terror that is exacerbated precisely because abusers now harness the power of technology, ‘enabling them to reach their victims’ everyday lives at the click of a mouse or the touch of a screen.'”

The case carries wide First Amendment implications for free-speech rights and artistic expression. Briefs laden with the f-word and vulgar references to the female anatomy attempt to provide a crash course on Eminem and Wu-Tang Clan for the justices, whose tastes lean more toward Wagner and Puccini, and illuminate what some scholars say are the misunderstood storytelling attributes of rap.

It is a thoroughly modern case for justices who even eschew e-mail communications with one another but are increasingly called upon to decide issues centered on evolving technology. Last term alone, they decided cases involving cellphone privacy, software patents and cloud-based Internet streaming video.

SCOTUSBlog’s Amy Howe previews the legal issues involved in the case:

In the fall of 2010, Elonis’s Facebook posts included several that discussed harming his ex-wife. One post was a take-off on a comedy routine available on YouTube: Elonis asked his Facebook friends whether they knew that it was illegal for him to say that he wanted to kill his ex-wife, and he added that it would be “incredibly illegal” to suggest that someone could kill his ex-wife by firing a mortar launcher from the cornfield behind her house. A day later, Elonis put up a post about shooting a kindergarten class.

These posts earned Elonis a visit from an FBI agent. After the visit, he posted about that encounter too, suggesting in rap lyrics that he had strapped a bomb to his body and would have detonated it if he had been arrested. This post was apparently the last straw for the FBI: a few weeks later, Elonis was arrested and charged with violating 18 U.S.C. § 875(c), which makes it a crime to communicate threats in interstate commerce – for example, over the Internet.

Elonis claimed that the charges against him should be dismissed because you can only violate the law if you intend to threaten someone. And he didn’t have any plans to threaten his ex-wife, the FBI agent, or anyone else: his rap lyrics and “venting” about his problems on Facebook just made him feel better. But if he can be convicted without any intent to threaten anyone, he added, that would violate the First Amendment. A federal trial court rejected both of his arguments. Instead, it instructed the jury, it could find Elonis guilty if the average person, looking at a statement objectively, would believe that it was intended to be a threat. The jury convicted Elonis, and he was sentenced to nearly four years in prison.

As Elonis emphasized in his Facebook posts, the First Amendment protects a right to free speech. But that right is not unlimited; the classic example is that you can’t shout “Fire!” in a crowded movie theater when there is actually no fire, because the resulting chaos could lead to injuries or even death. The Supreme Court has held that the First Amendment also does not protect “true threats,” but it has not specifically said how courts should decide what is (or is not) a “true threat. This case could give it that opportunity.

In his briefs at the Supreme Court, Elonis argues that a “threat” by its very nature requires an intent to cause fear. Because the whole point of a crime, he says, is that the defendant meant to do something wrong, the Court has interpreted criminal laws as requiring a wrongful intent even when they did not explicitly do so. Making it a crime to threaten someone even if you didn’t intend to threaten them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jury’s possible misinterpretation of their comments. This is particularly true, he concludes, when you are talking about alleged threats on social media and email, where nuance and tone matter so much and it’s so easy to misconstrue what someone says.

The federal government counters that, as the trial court in this case instructed the jury, courts should determine whether something is a “true threat” by looking at whether an average person would interpret the statement as reflecting a serious intent to harm someone. The government emphasizes that courts and juries can and should look at the context in which the alleged threat was made, and at the reactions of the people who heard the alleged threat, but they should not consider whether the defendant himself actually intended to threaten. This, the government explains, is because even if Elonis didn’t intend to threaten his ex-wife or the FBI agent, they were still afraid and their lives were still disrupted: the First Amendment doesn’t protect him even if he knew that he didn’t mean to threaten them.

Emily Bazelon also profiles this case in a piece that was published last weekend in The New York Times Magazine. As she points out, and as Amy Howe notes in the piece linked above, is what comes down to the primary issue in this case. Elons argues that he should not be prosecuted for what he posted on his Facebook page because, instead of actually being a threat, it was, in essence, a form of therapy. What appear to be violent threats against his estranged wife is, in reality, playacting of the kind that people often engage in online. Since there was never any intent on his part to threaten anyone via his postings, he cannot be prosecuted for what he posted. The obvious problem in dealing with a defense such as this, of course, is that it is quite easy for a Defendant to say after the fact that they never actually intended to threaten anyone. At that point, it becomes a question for a jury. In Elonis’s case the jury was instructed that they could find him guilty if they believed that it was reasonable for his estranged wife to view the posts a serious threat to cause her harm. The question before the Court on Monday will be whether this was the proper instruction, or whether the jury should have been instructed that it could only convict if it believed that Elonis truly intended to harm her and that it must acquit if there was any reasonable doubt on this issue. Obviously, if the Court adopts some version of the standard that the Defendant wants then it would make it much harder for prosecutors at all levels to convict someone who made what a potential target might perceive to be a threat against him or her, especially in an online forum where things such as anonymity, a sense of role-playing and people taking on personas that are different from those they project in the “real” world, and openness have long been hallmarks.

As with many cases that involve important Constitutional issues like Freedom of Speech that make it all the way to the Supreme Court, it’s difficult to see what the right answer to the balancing test the Justices will be required to perform here might be. On the one hand, it has long been true under the Court’s precedents that true threats to cause bodily harm are not entitled to First Amendment protection. This exception to the Amendment makes sense if only because it’s hard to see how “freedom of speech” was ever intended to protect someone who was walking around threatening to harm or kill people, especially given the fact that people who make such threats often end up finding a way to carry them out, at which point the government needs to worry about punishing them for something far more serious than just making a threat. At the same time, though, it cannot be said that speech that amounts to “blowing off steam” or engaging in fantasy is something that isn’t entitled to First Amendment protection, not the least because it then becomes hard to easily draw a line between people who are actually causing harm to someone and those who are engaging in what amounts to fantasy. This is last caveat is why the Supreme Court has often come down on the side of the First Amendment in cases involving shocking and offensive speech such as the Westboro Baptist Church’s funeral protests, a 2001 Federal law banning depictions of ‘animal cruelty,’ and 1996 law banning virtual depictions of child pornography that did not involve actual children in  production, which the Court struck down as unconstitutional.

Based on these, and other recent Supreme Court cases in the First Amendment area, my suspicion is that the Justices would be inclined to rule in Elonis’s favor. However, there is an obvious risk in adopting the standard that conviction that he argues for here. For one thing, it would make prosecuting almost any “true threat” case virtually impossible. In order to proceed, a prosecutor would have to have at least some reasonable belief that they could prove beyond a reasonable doubt that the Defendant actually intended to make actual threats in the online posts that would be at issue in a particular case. Inevitably, that is going to mean that actual threats may go unpunished and may descend into violence, especially in the domestic sphere. For that reason, I suspect that the oral arguments in this case will find the Justices probing the attorneys for both sides for some kind of a middle ground between the two positions. Whether they can find one or not is an open question, but this will be an interesting case to watch unfold, so I’ll likely have more to say about this after the Court has heard the case. As things stand right now, though, I’d have to say that, especially before this Court, Elonis likely has the best chance of succeeding in his argument.

For those interested, you can find the various briefs in this case at SCOTUSBlog’s information page for the case.