The U.S. Supreme Court ruled in favor of a man who was convicted for making violent threats stylized as music lyrics against his wife on Facebook.
Monday’s decision reversed the 2010 conviction of Anthony Elonis, a Pennsylvania man who served a 44-month prison sentence for dozens of Facebook posts that discussed kidnapping and killing his estranged wife.
One post detailed how “someone” could get away with killing his wife with a mortar launcher, and another on his sister-in-law’s Facebook wall suggested his son dress up as “matricide” for Halloween using his mother’s head on a stick as a prop, according to court documents.
These posts were often interspersed with disclaimers that the lyrics were “fictitious” and not intended to depict real persons, and with statements that Elonis was exercising his First Amendment rights. Many who knew him saw his posts as threatening, however, including his boss, who fired him for threatening co-workers, and his wife, who sought and was granted a state court protection-from-abuse order against him.
The threatening posts that eventually led to Elonis’ arrest weren’t always directed at his wife, and included passersby, law enforcement and schools of children. Elonis was fired from his job as an amusement park security guard after his boss, who was “friends” with him on Facebook, saw a picture of him holding a toy knife to a female coworker with the caption “I wish.” The local police and Federal Bureau of Investigations were notified after the incident, and soon began watching his online activity. Elonis also posted lyrics alluding to mass elementary school shootings and violent threats against two FBI agents who visited his home in response to the school shootings post.
First Amendment issues have been central to the case, but the Court ultimately decided not to weigh in on them. The justices primarily addressed whether the Facebook posts were actual and credible threats complete with intent to carry them out. In a 7–2 ruling, the Court found Elonis’ posts may be reckless but alone, they aren’t enough to prove imminent physical harm.
The Court reasoned that upholding Elonis’ conviction would have broad implications, potentially criminalizing innocent behavior. “Negligence is not sufficient to support a conviction,” Chief Justice John Roberts wrote in the majority Court opinion. The statute does not specify the mental state one must have for threatening speech to be criminal, the opinion states, and solely relying on an individual’s perception of harmful intent isn’t enough to constitute a threat.
“Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person,” Roberts wrote, and “whether a ‘reasonable person’ regards the communication as a threat — regardless of what the defendant thinks — ‘reduces culpability on the all-important element of the crime to negligence’…What [Elonis] thinks does matter.”
The decision comes as social media platforms wrestle with a growing online harassment problem. Reddit, Twitter, and Facebook among others have faced tremendous public pressure to address rampant harassment on their sites that’s often amplified for marginalized groups such as women, people of color, and the LGBT community. Twitter, in particular, has a sordid history with harassment and has long been criticized for seemingly facilitating abusive behavior due to lax policies and enforcement. The site recently changed its policies to make it easier for people to report abuse to the site and to law enforcement.
But internet culture and the ease of rapid-fire verbal expression has made policing violent or graphic speech online particularly difficult. Harassment victims often receive thousands of graphic death or rape threats in a given week, but they’re often anonymous and it’s unclear whether it’s coming from someone nearby or across the globe and whether they have the means or intent to follow through. Law enforcement agencies have also struggled to quantify the veracity of online threats often erring on the side of them being of little concern.
Monday’s decision didn’t wholly dismiss online threats as potentially harmful, but it reinforced the mind frame of the person making the threats is key to determining whether a threat is real — not just whether someone feels threatened. However, it remains to be seen whether the ruling could embolden harassers and make it more difficult to hold them accountable for what they say online.