Can a Facebook post land you in jail? When is a threat a threat, and when is it just good, clean fun, or even art? If you write a song about killing your spouse, but you haven’t killed them, at least not yet, will the First Amendment protect you from prosecution? These are some of the questions that the U.S. Supreme Court considers as it decides the case of Elonis v. United States.
Here’s what happened. In 2010, Anthony Elonis was convicted of posting Facebook threats against a number of people: his estranged wife, Tara, after she took out an order of protection against him; an FBI agent who had attempted to question him about his menacing Facebook posts; unnamed police officers who had yet to do anything to annoy Tony Elonis; and an unspecified kindergarten class, one within a ten-mile radius of Elonis' home. He was found not guilty on a fifth count of threatening co-workers at the amusement park where he no longer worked—the jury didn’t think those Facebook posts constituted true threats.
The law Elonis violated, the Interstate Communications Act, makes it illegal to threaten someone across state lines:
Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. [18 USC § 857(c)]
The government contends that Elonis’ words inspired fear in those who read them, but Elonis insists he didn’t mean to threaten anyone. He wants to be judged by his intent, not by how readers perceived his posts. For example, when he posted,
If I only knew then what I know now . . . I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder,
he didn’t intend to threaten his estranged wife, that was just therapeutic venting after a bad breakup.
And when he wrote,
That’s it, I’ve had about 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 fury like a crazy man in a Kindergarten class
The only question is . . . which one?
he didn’t intend to shoot up a school, even though his post put local schools on alert. According to Elonis, he was just channeling the violent lyrics of the rapper Eminem. Some of Elonis’ rants linked to the Wikipedia entry on freedom of speech, and so, he argues, his posts should be protected by the First Amendment. But a jury didn’t buy it, sentencing Elonis to forty-four months in jail, and the circuit court upheld his conviction on appeal. He served three years, followed by another three years of restricted activity while under court supervision.
Exhibit 12 in the criminal case against Anthony Elonis, a screenshot of one of his Facebook posts. Elonis contends it was just a therapeutic rant, or an artistic expression. The government contends it was a “true threat" that made his wife afraid.
Now Elonis hopes that the Supreme Court, with its history of defending a broad range of distasteful and unpopular speech, will overturn that conviction.
Supporters of internet freedom are siding with Elonis, warning the Court of the chilling effect of criminalizing online speech. And the justices, although they are said to be relatively lo-tech in their own speech habits, might agree. As Justice Sotomayor noted in oral arguments, “We’ve been loath to create more exceptions to the First Amendment.” But Justice Scalia, normally a free speech champion but no fan of rap, challenged Elonis attorney John P. Elwood during oral arguments, “And this is valuable First Amendment language that you think has to be protected, right?”
According to a recent study by the PewResearch Internet Project, 23% of women aged 18-24 have been physically threatened on social media, the most common site for online harassment. Advocates for the victims of domestic violence want the Court to signal that such online threats can’t hide behind the First Amendment. Justice Alito seemed to agree when he observed, in oral arguments, that excusing these menacing Facebook posts by calling them art “sounds like a roadmap for threatening a spouse and getting away with it. So you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an aspiring rap artist.”
One option for the Elonis Court is to sidestep the First Amendment altogether and simply try to define what constitutes a threat under the Interstate Communications Act. But that won’t be easy either. Some sections of the act require intent for conviction, but the section covering Elonis’ offenses is silent on the question of intent. Even so, Elonis’ attorneys insist that for any threat, it’s the writer’s intent that matters most, which prompted Justice Ginsburg to ask in oral arguments, “How does one prove what’s in somebody else’s mind?” The government insists a threat is anything perceived to be a threat by a reasonable person, to which Chief Justice Roberts asked, who is this “reasonable person” in the context of the internet?
Generally speaking, the legal definition of intent doesn’t require much evidence. As Oliver Wendell Holmes said in his dissent in a famous early First Amendment case involving sedition,
the word intent as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. . . . A man . . . may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. [Abrams v. United States, 250 US 616 1919.]
If the Elonis court adopts this view, then whether or not intent appears in the statute, Elonis is toast, to use a technical legal term.
But don’t be surprised if the Court sidesteps intent as well and simply says, "In each case, a threat is determined by a mix of intent, context, and response that can’t be measured precisely, and so it’s the jury’s job to decide whether any given Facebook post merits jail time."
A final note, filed under "some people never learn": A day after the Supreme Court heard arguments in the case, the U.S. Attorney's office for the Eastern District of Pennsylvania announced that before his release from prison, Elonis mailed this apparent threat a prosecutor in their office:
I am rapidly approaching the date of my release. Accordingly, I would like to begin researching the ordinances of the municipality in which you reside. I simply do not wish to run afoul of any of them when I set fire to a cross in your yard. :-p
That message was followed by an emoticon, :-p, purporting to say, “just kidding.” The reference to cross burning, generally perceived by reasonable people to be a severe form of threat, may be a thinly-veiled allusion to Virginia v. Black, a case in which the Supreme Court ruled that cross burning may be outlawed when it is intended to intimidate, but states may not impose a blanket ban on it because some cross burnings may be protected political speech. The example of protected speech cited by the Court:
It is a ritual used at [Ku Klux] Klan gatherings, and it is used to represent the Klan itself. [Virginia v. Black, opinion by J. O'Connor, p. 20.]
We will see when it rules on Elonis v. United States later this term whether the Court thinks that Anthony Elonis was kidding in his posts and letters. One thing is sure: whoever writes the opinion in the case won't append a 
to it, assuming they even know what it means or how to do it, because they won't be kidding.
UPDATE: The Supreme Court answered the question, "Can a Facebook post land you in jail," with a resounding "maybe." Read my comments on the Court's ruling here.
