How Real is a Facebook Threat?

The Supreme Court agreed in June 2014 to hear the case of Elonis v. United States, an important First Amendment challenge that will attempt to clarify after years of ambiguity and split decisions in the lower courts the question of when threats, specifically internet threats, should be taken seriously by the law.  The case will be heard on December 1^st of this year, and will clarify whether threats of violence made on social media sites such as Facebook, should be judged by (1) whether the speaker intended to harm anyone, or (2) whether the recipient was genuinely afraid of being harmed.  Essentially, it is a decision that will decide whether the crime should be judged by the actor’s subjective intent or the target’s subjective belief.

Online death threats are becoming all too common.  Recent examples include an 11-year-old who faced death threats through Facebook over his love of hunting, a mayor whose life was threatened by his paper boy, and hundreds of Harvard students who received emails from a sender who threatened to “shoot all of you” and “kill you individually.”

The case soon to be heard by the highest court arose when Anthony Elonis, an aspiring rapper from eastern Pennsylvania, allegedly posted threats on Facebook back in 2010.  Elonis’s ex-wife took their two children and left him after he was fired from his job.  Elonis then began a series of “dark and vengeful rants,” some in the form of rap lyrics, about killing among others, his ex-wife, an FBI agent, and a class of kindergarten-aged children.  Among the several Facebook postings, the one directed at his ex-wife read:

“There’s one way to love you but a thousand ways to kill you.  I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

And in another post directed at young children, Elonis wrote:

“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined … the only question is … which one?” 

After FBI agents visited Elonis to follow up on the earlier threats, he put up another posting directed at the FBI agent, in which he talked about slitting the agent’s throat and claiming he had a bomb strapped to his during the interview.  In part, it read:

“[T]he next time you know, you best be serving a warrant, and bring yo[ur] SWAT an[d] explosives expert while you’re at it, [be]cause little did y’all know, I was strapped wit[h] a bomb … I was jus[t] waitin[g] for y’all to handcuff my and pat me down.  Touch the detonator in my pocket and we’re all goin[g] BOOM!”

Elonis was subsequently arrested in December 2010 and tried before a jury under a federal law that prohibits the use of interstate communications to threaten to harm others.  His ex-wife testified that she objectively feared for her life because of the posts, especially since the posts increased after she filed a “protection from abuse” order against Elonis.  At trial, she said, “I felt like I was being stalked.  I felt extremely afraid for mine and my children’s and my families’ lives.”  Additionally, she testified that over the course of their seven-year marriage, Elonis rarely listened to rap music and she never once saw him write any rap lyrics.

Elonis’s defense at trial was that the threats were not real and that they were simply “therapeutic” and if anything, the words were protected by the First Amendment.  These arguments did not hold up in court as Elonis was convicted on four out of five of the federal charges and sentenced to 44 months in prison.  As of today, Elonis has spent three years in prison for the threats. 

In December, the Court will decide: (1) whether in today’s social media age, Elonis’s behavior was outside of the norm to constitute a threat, and (2) a widespread test for how threats should be determined and, (3) what constitutes a “true threat,” which would not be protected by the First Amendment.  At Elonis’s initial trial, the jury was instructed that an unprotected “true threat” is where an objectively reasonable person would consider the posts to be threatening and not just an exaggeration; however, Elonis argued that the test should not focus on the perception of the recipient, but on the intent of the speaker.  In other words, the test should be whether he intended for the posts to be understood as threats.  He also argued that rap lyrics are protected by the First Amendment, just like violent lyrics by mainstream artists.  Most Court experts believe that Elonis may win this case because of today’s social media culture.  As put by a law professor, “[t]he context of rap music these days suggests that what Elonis put out there really isn’t all that unusual for what’s going on on Facebook and what’s going on in the popular culture.”

In the highly-scrutinized 2003 Supreme Court decision, Virginia v. Black, the Court held that a Virginia law banning cross burning was unconstitutional because a “true threat” requires the speaker to communicate intent to commit violence.  The Court defined “true threats” to be “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”  The Court viewed the Virginia law skeptically, fearing that similarly overbroad laws might “chill lawful speech” under the U.S. Constitution’s First Amendment.  Accordingly, the Court has struck down a federal law criminalizing false claims of having received military decorations or medals in United States v. Alvarez (2012), a federal law criminalizing the depiction of animal cruelty in United States v. Stevens (2010, and protected a protestor’s right to express their hateful and hurtful messages free from civil sanction in Snyder v. Phelps (2010). 

The outcome of this decision certainly bears effect on the public.  The intent standard Elonis urges the Court to adopt will make it more difficult to win a conviction for making an illegal death threat, since the prosecution would have to rely on an abundance of circumstantial evidence to show the speaker’s state of mind.  The decision will also determine how careful individuals are next time they take their frustrations out on social media, assuming the Supreme Court decides in favor of a law based on the receiver’s fear.  Any rule the Justices come up with will not just apply to Facebook, Twitter, Instagram, etc., but to all forms of communication, including face-to-face, a post on a blog, or a newspaper/magazine article.  The prevalence of violent imagery in today’s media should be taken into account and that the threat-receiver’s fear must be reasonable and not the result of hypersensitivity to disturbing language.  Either way, while Elonis may win in the Supreme Court, his case may nonetheless result in a conviction in a new trial on remand, as a reasonable jury may find that, given the status of Elonis’s relationship with his wife, the loss of his job, and separation from his children, he really intended the threats to be true.

By Mahira Khan

Staffer, Criminal Law Practitioner

Photo by Joel via Flickr.