Supreme Court to Decide Whether Violent Online Messages Are ‘True Threats’ or Free Speech


Content note: This article contains violent language.

On Monday, the U.S. Supreme Court announced it would take up a case involving the issue of when violent statements made online count as actual threats and when such statements are considered free speech under the First Amendment.

The case involves Anthony Elonis, a Pennsylvania man convicted in 2010 under federal law for posting a series of threatening messages on his Facebook page. According to court documents, Elonis began making violent and threatening public statements on Facebook shortly after his wife and their two small children moved out. Elonis also began acting out at the amusement park where he worked, Dorney Park and Wildwater Kingdom—among other things, he engaged in behavior that led to a co-worker filing five sexual harassment complaints against him. At one point he posted a picture of himself in costume, taken during the park’s Halloween Haunt, holding a knife to the neck of that co-worker, with the caption “I wish.” Elonis’ supervisor saw the post and fired him the same day.

After he was fired, Elonis’ posts became increasingly violent. According to court documents, Elonis’ Facebook statements included threats to kill his ex-wife, blow up the sheriff’s office, shoot up a kindergarten, and attack former co-workers. According to court documents, Elonis’ ex-wife testified that she felt like she was being stalked by Elonis’ posts, and that she was “extremely afraid” after statements like these appeared:

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….

The statements were enough for a court to grant Elonis’ ex-wife a protection from abuse (PFA) order.

Despite the court order, Elonis defended the statements, saying they were meant to be rap lyrics in the style of Eminem, and that he never intended the posts to be threats. During the trial, Elonis’ ex-wife testified that during their seven years of marriage Elonis rarely listened to rap music and she had never seen Elonis write rap lyrics. According to his ex-wife, the lyric form of the statements did not make her take the threats any less seriously. After the court granted the PFA, Elonis posted the following:

Fold up your PFA and put in in your pocket
Is it thick enough to stop a bullet

By this time the FBI was monitoring Elonis’ posts; his former employer had contacted the agency regarding Elonis’ threats against his former co-workers. FBI Agent Denise Stevens contacted Elonis after this appeared on his Facebook page:

That’s it, I’ve had enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever
imagined
And hell hath no furry like a crazy man in a
kindergarten class
The only question is…..which one?

After Stevens visited Elonis, he posted more misogynistic and violent statements in which he fantasized about killing his wife and Stevens.

The question of what constitutes free speech and what constitutes criminal threats is one federal courts have struggled with, especially after 2003, when the Supreme Court, in Virginia v. Black, ruled that burning a cross could sometimes count as free speech. Since then, courts faced with the issue have split on whether to prove a statement is a “true threat” prosecutors must prove (beyond a reasonable doubt) that the speaker intended the statement to be a threat or whether a “reasonable person” would find the statement threatening. According to Elonis’ attorneys, whether or not Elonis’ statements were criminal threats depends on whether Elonis intended them to be actual threats, which they say he did not. In fact, Elonis’ attorneys claim their client wasn’t threatening anyone—they say he was just imitating Eminem.

In granting review, the Roberts Court is set to look at both this question of whether the “subjective intent” of the speaker governs generally for purposes of the First Amendment, but also specifically what standard applies to the statute under which Elonis’ was convicted. This statutory question was added by the Court when it decided to grant review, and leaves open the possibility of a narrow ruling.

But a broad ruling from the Court could have far-reaching consequences. Extreme anti-abortion advocate Angel Dillard has claimed her letter promising explosives under the car of Kansas abortion provider Dr. Mila Means did not violate the Freedom of Access to Clinic Entrances (FACE) Act because it wasn’t a “true threat.” Dillard sent the letter to Means to dissuade her from performing abortions in Wichita after the murder of Dr. George Tiller. Dillard also sought to exclude her jailhouse communications with Tiller’s confessed murder, Scott Roeder, as protected by a “ministerial exception,” claiming she was visiting Roeder to minister to him.

Then there’s the case of Mark Holick, a pastor who argues that his “wanted”-style poster featuring the picture and home address of a Wichita abortion clinic operator is also protected speech.

Ultimately, though, the outcome of the case could turn on how seriously the Supreme Court takes online threats, and especially online threats against women. Elonis’ case is littered with his violent threats, but even if the court finds him an unsympathetic plaintiff, that’s not the same as believing his actions were criminal threats. Maybe that’s not entirely a bad thing. After all, in First Amendment terms the answer to bad speech is usually more speech.

But if the Court holds Elonis’ statements were not threats but instead run-of-the-mill First Amendment misogyny, where does that leave us? If a notorious anti-abortion radical can defend sending a letter to an abortion provider in which she says there will be a bomb under her car by claiming that she didn’t mean it, what then? Like the First Amendment fight over abortion clinic buffer zones in McCullen v. Coakley, the First Amendment fight in Elonis is as much a fight over whether or not the law should recognize a right to be left alone. But just like McCullen, given the fact that the speech in question primarily targets women, I’m not that hopeful a majority of justices on the Roberts Court will agree they were criminal threats.

The Supreme Court will hear arguments in the Elonis case next term.

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