The Supreme Court agreed Monday to consider a classic free speech conundrum for the 21st century: When do threatening comments made on social media sites such as Facebook cross the line into criminal activity?
Two lower federal courts ruled that Anthony Elonis crossed that line in 2010 when he mused on his Facebook page about killing his wife and others, including an FBI agent who was investigating his actions.
“Did you know that it’s illegal for me to say I want to kill my wife?” he wrote in one of many posts. “It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say.”
The lengthy diatribe copied nearly word-for-word a satirical sketch by The Whitest Kids U’ Know comedy troupe, concluding with Elonis’ own summation: “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”
In seeking the high court’s review of his conviction, Elonis’ attorneys contend he never intended actual violence. What the justices have to decide is whether that matters, as long as a “reasonable person” would feel threatened.
The court’s precedent for such cases is now 11 years old. In 2003, the Supreme Court ruled in Virginia v. Black that a state law equating cross-burning with intimidation went too far, reasoning that not all cross-burning was meant as a threat. Justice Clarence Thomas, the lone black jurist, dissented.
Since then, lower state and federal courts have split on what constitutes a threat — the perpetrator’s subjective intent to threaten, or anyone else’s objective interpretation. Most but not all courts have agreed it’s the latter standard, used to convict Elonis.
The Supreme Court has refused to get involved in such disputes. Last year, for instance, it denied a petition from a man convicted of threatening on YouTube to kill the judge in his child custody case.
The new case dates back to 2010, when Elonis’ wife left him after a seven-year marriage and took their two children. Apparently despondent at age 27, he lost his job at an Allentown, Pa., amusement park and began a series of dark postings, often in the form of rap lyrics. In his Facebook profile, he said the rants were therapeutic and disclaimed any “true threat.”
Elonis’ wife wasn’t amused. She obtained a “protection from abuse” order against him, which only led to more rants directed at more people. He was arrested that December and eventually given a 44-month sentence plus three years’ supervised release. He finished his prison term in February.
The federal law that tripped up Elonis states: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” Many states have similar statutes.
Elonis’ attorneys say the “reasonable person” standard should not be used because members of a broad social media audience who don’t know the author might misinterpret his words or guess incorrectly at his intentions.
“The issue is growing in importance as communication online by e-mail and social media has become commonplace,” Elonis’ petition for Supreme Court review says. “Modern media allow personal reflections intended for a small audience (or no audience) to be viewed widely by people who are unfamiliar with the context in which the statements were made and thus who may interpret the statements much differently than the speakers intended.”
The Justice Department, which wants the appeals court’s ruling to stand, notes that the federal law is aimed at preventing not only real violence but the fear and disruption induced by perceived threats.
The current Supreme Court has been a strong defender of free speech rights, going so far as to permit distasteful protests at military funerals and online videos depicting animal torture.
But it also has drawn lines, ruling this term against the free speech rights of a previously convicted military protester and opponents of then President George W. Bush who were moved from their protest site by the Secret Service.