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Can Haters Post Death Threats on Facebook?

December 09, 2014

By Whitney Gibson

Gavel

On Dec. 1, the United States Supreme Court heard arguments in the case of Anthony Elonis, a 31-year-old Pennsylvanian convicted of posting violent, threatening statements on Facebook. A jury found Elonis guilty of communicating threats to injure another person in violation of a federal statute. The Supreme Court’s ruling on what constitutes a criminal threat on social media websites, like Facebook, has potential consequences for the way that people express themselves on social media.

In 2010, Elonis – operating his Facebook account under the pseudonym “Tone Dougie” – posted threatening rants on his own page about killing his estranged wife, slitting the throat of an FBI agent and even shooting up a kindergarten. For example, he posted the following remarks about his wife, Tara, shortly after she obtained a restraining order against him:

“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.”

He later argued that these were “rap lyrics.”

Elonis was arrested in Dec. 2010 and ultimately sentenced to 44 months in prison. Elonis – who claims the lyrics were “for entertainment purposes” and simply therapeutic “venting” – lost an appeal in the United States Court of Appeals that has jurisdiction over Pennsylvania, and then successfully sought review in the Supreme Court. The Supreme Court has addressed the limits of Constitutional protection for threatening language before, but not in this kind of social media context.

The question is whether there is enough of a “true threat” for a criminal conviction if a reasonable person would feel threatened, or only if Elonis’s actual intent is shown.  In previous cases, lower courts have split on whether the prosecution needs to prove the accused person’s actual intent, or whether it is enough to prove that a “reasonable person” would feel threatened.

In friend-of-the-court briefs, First Amendment “free speech” advocates have lined up supporting Elonis’s side of the argument, against groups that oppose domestic violence and ethnic intimidation. People for the Ethical Treatment of Animals (PETA), for example, joined a number of anti-abortion groups and others to ask the Court to rule in favor of Elonis. They argued that the ability to convict someone just for making threats that would inspire fear in “reasonable person” might chill their protest activities.

A ruling in the case should come out sometime next year.

Elonis v. United States: What the case means for social media users

One immediate effect of all the news media attention to this social media/criminal case is higher awareness. Anyone who assumed that there were no legal consequences for saying anything on the Internet should now know that was a mistake.

Whichever standard the Supreme Court chooses, it is clear that you can go to prison for violent threats on social media, whether the prosecutor has to convince the jury that you really meant it, or merely that it was reasonable for your victim to be afraid. Not many juries are likely to sympathize with a defendant who posts about shooting kindergarten children on Facebook, Twitter, or any other platform.

If the 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. A ruling against Elonis may “chill” offensive speech and limit how others express themselves through social media. It is worth noting that, at trial, Elonis argued that some of his lyrics were quotes from or inspired by rapper Eminem and a skit from sketch comedy troupe “The Whitest Kids U’ Know.”

Even if the Court rules for Elonis, convictions will still be available as long as a jury finds that an accused criminal had real intent to threaten someone.

Finally, anyone who is considering Internet statements that threaten personal violence should remember that standards are different for criminal convictions and civil liability. Remember O.J. Simpson? He was acquitted of murder in his criminal trial, but the family of one of his alleged victims won a huge judgment against him in a civil lawsuit.

Similarly, anyone who is reckless in Internet statements that could intimidate, harass or emotionally distress another person should beware of the possibility that reckless statements could lead to civil liability and other bad consequences, even if not to the jailhouse door.

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