Supreme Court: On Facebook, It’s Not A Threat Unless You Really Mean It

Claire Bernish | ANTIMEDIA

“A guilty mind is a necessary element in the indictment and proof of every crime.”

Prosecuting those who make violent statements on Facebook just got a little more difficult. The Supreme Court determined it isn’t enough that an ordinary person might find such rants threatening, therefore overturned the conviction of a man who had used rap lyrics to describe violent acts about his ex-wife in social media posts.

Anthony Elonis was convicted in 2011 after posting detailed descriptions about killing his estranged wife, law enforcement officers, and even a mass school shooting. A jury found he was in violation of an interstate communications law prohibiting “any threat to injure the person of another”, and was sentenced to four years in federal prison. Though the Supreme Court threw out the decision, it did not specifically address the free speech aspects of the case, nor did it set parameters for what would be necessary for possible future convictions.

Elonis maintained his posts were simply “therapeutic” narratives lacking any intent to threaten others, so he never should have faced prosecution. In one example, he posted: “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: “There’s one way to love you but a thousand ways to kill you.”

Previous convictions were based on whether such comments would strike fear in a ‘reasonable’ person, hence rendering a plausible threat. Chief Justice John Roberts felt this decision was partially a way to correct that misinterpretation, writing “Communicating something is not what makes the conduct ‘wrongful’. The ‘general rule’ is that a guilty mind is a necessary element in the indictment and proof of every crime.”

Justice Clarence Thomas, one of the two dissenting opinions, believed leaving so much open to interpretation would create problems: “This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”

The concept of ‘recklessness’ was not addressed in the ruling, which Justice Samuel Alito felt “will have regrettable consequences” because without clear guidelines, “attorneys and judges are left to guess”. Pointing out the importance, he explained that someone acting recklessly, “is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway […] Indeed, this Court has held that ‘reckless disregard for human life’ may justify the death penalty.” Roberts and the majority didn’t feel recklessness should be addressed since it had not been a factor in any previous ruling.

As the executive director of the National Center for Victims of Crime, Mai Fernandez felt domestic abuse victims might bear the brunt of this decision with threats over social media now more difficult to prosecute: “The Internet is the crime scene of the 21st century. The laws governing social media require swift interpretation to keep pace with the ever-advancing criminal activity in this space.” Kim Gandy, president of the National Network to End Domestic Violence, agrees. She explained, “Threats play a central role in domestic abuse and is a core tactic that many abusers employ,” and in the context of an abusive situation, threats can have a harmful impact “regardless of whether the abuser intended to threaten or only intended to vent or to make a joke.”

A brief on Elonis’ behalf filed prior to trial, and penned in part by the Student Press Law Center and the Electronic Frontier Foundation, addressed the changing face of communications in the social media framework, including the frequency of misunderstandings and “the phenomenon of disinhibition.” It dubs social media a “technological megaphone” that serves as a platform for users to vent “emotions on which they have no intention of acting, memorializing expressions of momentary anger or exasperation that once were communicated face-to-face among friends and dissipated harmlessly.”

Though not a decisive victory for free speech, civil liberties advocates hailed the ruling as a return to the original aim of the law, which “for centuries required the government to prove criminal intent before putting someone in jail,” said ACLU legal director Steven Shapiro. “That principle is especially important when a prosecution is based on a defendant’s words. The Internet does not change this long-standing rule.”


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