Threats made over Facebook are not illegal unless intentionally malevolent, court rules

Decision seen as a blow for groups that defend domestic violence victims

Richard Wolf
Tuesday 02 June 2015 10:28
The question that has split federal appeals courts is whether the threats made on social media must be intentional to be illegal
The question that has split federal appeals courts is whether the threats made on social media must be intentional to be illegal

The US Supreme Court struck another blow for free speech on Monday, ruling that threats made over the Internet are protected unless they are intentionally malevolent.

The decision was a temporary victory for Anthony Elonis and those like him whose threatening words on Facebook or similar social media sites may instill fear in their targets. It was a defeat for the government and groups that defend victims of domestic violence.

Chief Justice John Roberts wrote the decision for a near-unanimous court. It was based on the court's interpretation of a federal statute, rather than under the First Amendment.

Justice Clarence Thomas dissented, and Justice Samuel Alito dissented in part.

Elonis was 27 and recently unemployed in Pennsylvania five years ago when he began posting threats against his estranged wife and others, from a generic kindergarten class to the FBI agents who came to his door. He was convicted on four counts of transmitting threats and sentenced to 44 months in prison. He completed his term a year ago.

The question that has split federal appeals courts is whether the threats must be intentional, or whether they are illegal just because a "reasonable person" - such as those on the receiving end - takes them seriously. Elonis was convicted under the latter standard; a majority of justices ruled that's not sufficient.

"Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state," Roberts wrote.

The ruling is seen as a defeat for the government (Getty)

Elonis might not be off the hook, however. The high court's ruling means his case will be sent back to a lower court to determine whether he meant what he posted or was at least reckless in posting it. If the court rules that his posts were intentionally or recklessly threatening, his conviction would stand.

The case represents a critical test of free speech in the Internet age, when words that seem threatening emanate from violent spouses and video game-players alike. The justices were seeking a rule that could result in locking up the former and letting the latter off the hook.

Elonis' case offered a perfect test. After his wife, Tara, left him and took their two children, he lost his job at an Allentown, Pa., amusement park and began a series of dark posts containing explicit references to violence against his wife, co-workers, kindergartners, police and the FBI.

Sometimes, he imitated rap lyrics. Other times, he referred to his First Amendment rights. His lawyers said it was a form of therapy as well as art.

"Did you know that it's illegal for me to say I want to kill my wife?" Elonis 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?"

Elonis' attorneys said he never intended to carry out his violent threats. On the Internet, they said, context is lost and words can be misinterpreted.

The government said the standard used by lower courts — that Elonis' words on Facebook could be viewed as threats by a reasonable person reading them — was sufficient, and his intent did not have to be proved.

"Juries are fully capable of distinguishing between metaphorical expression of strong emotions and statements that have the clear sinister meaning of a threat," its brief said. Rap music has thrived under the "reasonable person" standard, it noted, without ensnaring popular rappers such as Eminem.

The government was backed by groups such as the National Network to End Domestic Violence, which cited a survey of 759 victims' service agencies that found nearly 90% of them had cases of threats delivered via technology. Text messages were the most prevalent form, followed by social media and e-mail. Women between the ages of 18 and 24 were the most frequent targets.

The current US 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 last 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.

This story originally appeared on USA Today.

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