The United States Supreme Court recently heard arguments in a case concerning threatening “rap lyrics” posted to Facebook. The Supreme Court’s ruling on what constitutes a criminal threat on social media – which is not expected until sometime in 2015 – has potential consequences for the way people express themselves online.
Four years ago, a Pennsylvania man was arrested after he made a series of Facebook posts that appeared to threaten the life of his estranged wife, as well as slitting the throat of an FBI agent (who visited him in wake of the initial posts) and shooting up a kindergarten class. Anthony Elonis, now 31, was charged with five counts of violating a federal statute that prohibits communicating threats to injure others, 18 U.S.C. § 875(c).
Elonis’s Facebook posts came shortly after his wife, Tara, left him (with their two children) and obtained a restraining order against him. Using the alias “Tone Dougie” on Facebook, the self-proclaimed “aspiring rap artist” posted a series of violent lyrics. For example: “There’s one way to love ya, but a thousand ways to kill ya / And I’m not going to rest until your body is a mess / Soaked in blood and dying from all the little cuts.”
Elonis was ultimately sentenced to 44 months in prison, and the U.S. Court of Appeals for the Third Circuit affirmed his conviction. Elonis petitioned for certiorari and the U.S. Supreme Court accepted review of the case, hearing arguments from Elonis’s attorney and federal prosecutors on Dec. 1, 2014.
At issue is what constitutes a “true threat,” sufficient to support a criminal conviction. Is it if a “reasonable person” would feel threatened, or if Elonis’s actual intent was to do harm? The Supreme Court has previously addressed the limits of Constitutional protection for threatening language before, but not in this context.
Accordingly, the outcome of the case may have ramifications for what users may post on Facebook, Twitter, Instagram and other social media platforms without inviting possible prosecution.
First Amendment proponents have sided with Elonis, including several prominent organizations that filed friends-of-the-court briefs on his behalf, such as the ACLU and PETA. PETA, for example, argued that convicting someone just for making threats that would inspire fear in a “reasonable person” might chill their protest activities.
Whichever standard the Supreme Court chooses, it is clear that a person can go to jail for violent threats on social media – whether the prosecutor has to convince the jury that the poster truly meant what he or she said, or merely that it was reasonable for the subject of the post(s) to be afraid. Not many juries are likely to sympathize with someone who posts on Facebook or tweets about violently killing someone.
If the Supreme Court rules against Elonis, the standards will become even stricter in those states and federal circuits that previously required proof of the accused criminal’s real intentions. Such a ruling could have a chilling effect on offensive and potentially threatening speech, as well as limit how people express themselves on social media. Ultimately, of course, it is unlikely to eliminate much speech, since public judgment about what is and is not appropriate to post, even in jest, will continue to vary widely.
A ruling for Elonis, meanwhile, would make it more difficult to prove that a post on Facebook or another social media platform constitutes a “true threat,” even if a reasonable reader/viewer of a post would fear for his or her safety.
Whichever way the Supreme Court rules, however, convictions will still be available as long as a jury finds that “true threat.”
Regardless of any change the Elonis case may make to criminal law, anyone who is reckless enough to make statements online that could intimidate, harass or emotionally distress another person should beware of the possibility that those statements could lead to civil liability and other bad consequences – even if not to a criminal prosecution or conviction.