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Facebook and Free Speech: What Constitutes a Threat in the Digital Age?

On Behalf of | Jan 8, 2015 | Criminal Defense

The Supreme Court of the United States is currently tackling a major issue: when do comments on social media cross the line from protected speech to illegal threats? See Elonis v. United States, Docket No. 13-983. In this modern age of Twitter, Facebook, chat-rooms, and other social media platforms, drawing the line between free speech and illegal threats is no simple task.

The Supreme Court is considering the case of Anthony Elonis, who posted violent rap lyrics about murdering his estranged wife and slitting an FBI agent’s throat on Facebook. Elonis was convicted and sentenced to four years in prison for making the comments, but he maintains that his posts were a way of venting his anger and that he did not intend to threaten anyone with the lyrics.

The question facing the Court is whether it matters what Elonis intended when he made the comments or whether his violent words would make a “reasonable person” feel threatened. The government argues that the speaker’s intent is irrelevant: if a reasonable person would feel threatened by comments, the comments constitute a threat and are not protected speech. Elonis, on the other hand, says that this standard is too broad and would criminalize protected speech.

Elonis also argues that the subjective intent of the speaker is relevant when deciding if a threat has been made. If Elonis intended to threaten the life of his wife or the FBI agent, then his speech would be illegal, but if he merely intended to vent his frustration, then his actions are protected. According to Elonis, contextual evidence could be used to decide what the speaker meant to accomplish by making the comments. Elonis also argues that the government’s “reasonable person” standard could result in the prosecution of teenagers who make sarcastic or spontaneous angry remarks on the Internet without the serious intention of carrying out their comments.

Punishing comments that a “reasonable person” would find threatening without regard for the speaker’s intent appear to criminalize protected speech. The Internet is a place where commenters often make impulsive, crude, and sarcastic remarks. Disregarding the intent of the speaker could result in prison time for people who use social media without considering the impact of their comments on others.

It will be interesting to see if the Court protects First Amendment free speech by requiring proof of the speaker’s subjective intent to threaten. The issue of whose intent matters, the speaker’s or the reasonable listener’s, will determine whether Elonis’ violent Facebook comments are criminal or not. Whatever the Court decides, the result will certainly have significant consequences for social media and those who make and receive threatening remarks on the Internet.