In Elonis v. United States, the U.S. Supreme Court offered some context—but no answers—to the riddle of where colleges and universities should draw the line when dispensing discipline for threatening social media posts. The Elonis Court overturned the federal conviction of a man who posted violent rap lyrics about his wife, his co-workers, local kindergartners, and an FBI agent, all on Facebook. The man was convicted of transmitting a communication that contained threats to hurt others. The Supreme Court held that, rather than viewing the threat from the recipient’s perspective (the reasonable person standard), a criminal conviction requires intent—specifically, that the person posting the alleged threat intends to make a threat, and knows that the recipient of the post will see it as a threat. The Elonisdecision made headlines, but doesn’t provide much guidance for how colleges and universities should handle social media posts that appear to threaten members of the campus community.
Colleges are not constrained by Elonis
Because most campus officials would probably prefer to be overly cautious about dismissing threatening posts, the good news about the Elonis decision is that (although the Supreme Court’s decision appears to limit criminal prosecution of violent or threatening social media posts), it does not impact the higher education community’s ability to act in the face of such threats. Indeed, administrators, campus police, students, and faculty can all be engaged to monitor, report, and respond to potentially threatening messages without concerns about proving intent.
Monitor, report, and respond
As a starting point, strive to ensure your campus community is educated and aware of campus policies on social media use. Train individuals who officially monitor campus servers and sites to recognize potential threats, and make sure they know how to report them. But what about off-campus sites, like Facebook and Twitter, and anonymous apps like YikYak and Whisper, just to name a few? In addition to official campus monitoring, it is essential to educate those most likely to discover offensive posts (that is, students, faculty, and employees) about when to be concerned, and how and where to report their concerns.
Once a school receives a report of a potentially threatening post, administrators should have a plan in place for assessing the credibility of the threat.
- Is it a true threat or just obnoxious speech?
- Is the posting party identifiable?
- Is he or she connected to the institution in any way?
- How will the institution tailor its response to various parties—for example, when the party cannot be identified, or when the party is a member of the campus community?
- How will the institution determine, and align responses with, the level of threat? Purely offensive speech may not be a threat, but may be a violation of other school policies such as a code of conduct; whereas a true threat could warrant extreme measures including Clery Act emergency response procedures.
- How will the institution balance threat assessment and response with requirements and ideals for protecting freedom of speech?
Don’t let down your guard
Although the Elonis decision raises the bar for criminal prosecution of threatening posts on social media, it should not lead institutions of higher education to relax their standards. Continued vigilance on the social media landscape is a must for safeguarding the college community.