Yesterday, the United States Supreme Court heard oral argument in Elonis v. United States, a case considering the intersection between threats and free speech. The case centers on angry Facebook posts that Anthony Elonis wrote after his marriage fell apart. Those posts got him convicted of violating a federal law that prohibits using interstate communications to threaten another person. He was sentenced to 44 months in prison. His lawyers now argue that criminalizing his conduct is an unconstitutional infringement of free speech.
Facebook is the worst
Elonis’ trouble began in 2010 when his wife left him and took their two young children. He began venting about the breakup on Facebook. He posted some pretty violent stuff including his own rap lyrics and lyrics from popular songs. He often included language claiming that the statements were fictitious and merely his exercise of free speech. One such rant actually paraphrased a popular YouTube video that makes fun at how it’s illegal to threaten the president’s life.
The FBI didn’t think it was funny and, when some of his venting referred to murdering an investigating agent, Elonis ended up in handcuffs. Many of the threats are quoted in the Third Circuit Court of Appeals opinion affirming the conviction.
Elonis goes to trial
In the District Court, Elonis argued that the case should be dismissed since the statements were protected by the first amendment. He acknowledged that “true threats” are not protected, but Elonis argued that such threats only exist where the speaker subjectively intends the words to be threatening. The trial judge disagreed. He denied the motion to dismiss and instructed the Jury to convict if they found that a reasonable person making the statements could have foreseen that they would be interpreted as a threat.
And so that’s the crux of the case, can this country’s laws criminalize certain speech based on how the words might be received rather than how those words are intended?
The law of the land?
Many states make it a crime to say things that put other people in fear. In Maine, that crime is called terrorizing. To get a conviction, the prosecutor does not need to prove that the speaker intended to threaten anyone so long as that speech might have placed another person in fear of violence. Under Maine’s law, the person does not need to actually be placed in fear so long as fear could be a “natural and probable consequence of such a threat”.
The Ninth Circuit, which covers a good chunk of the Western United States, the supreme courts of Massachusetts, Rhode Island, and Vermont have all adopted the subjective intent standard. In those jurisdictions, speech only falls within the “true threat” exception if the prosecution proves that the defendant intended the speech to be threatening. If the Supreme Court overturns Elonis’ conviction this minority rule could become the law of the land and statutes like Maine’s might be unconstitutional.