U.S. Supreme Court to Hear Oral Arguments on Monday in Important Facebook Threats Case

The United States Supreme Court will hear oral arguments next Monday in a case that pits the defendant’s First Amendment right to free speech against a criminal law that was used to prosecute him for threatening his ex-wife.  The name of the case is Elonis v. United States.

The defendant’s problems began in 2010 when his wife left him and took their two kids with her.  The defendant started to post violent rap lyrics on his Facebook account, and eventually began making comments about his ex-wife.  In one post, the defendant commented that it would be illegal to say that he wanted to kill his wife, and incredibly illegal to suggest that someone else could kill his ex-wife with a mortar launcher.  In another post, the defendant posted a comment about shooting up an elementary school.  These Facebook posts caught the attention of the FBI and the defendant was arrested and charged with a federal crime that prohibits communicating a threat on the Internet (which constitutes interstate commerce).

A jury convicted the defendant of threatening his wife, police officers, an FBI agent, and kindergarten students.  The trial judge sentenced the defendant to serve 44 months in federal prison followed by three years of supervised release.  The Third Circuit Court of Appeals affirmed the defendant’s convictions, and the United States Supreme Court decided to hear the case.

The First Amendment Free Speech Clause is not absolute.  There are certain categories of speech, such as incitement, fighting words, and “true threats,” that are not protected.  The defendant’s argument on appeal is that in order for speech to constitute a true threat, the speaker must subjectively intend to threaten the victim.  While it’s not necessary for the defendant to intend to carry out the threat, he at least needs to intentionally threaten the victim.  The Third Circuit held that the test is objective – whether a reasonable person would have interpreted the speech as a serious intention to inflict harm on the victim.  The objective test is favored by a majority of the federal appellate circuits.

The defendant will argue to the Supreme Court that the objective test is inconsistent with the First Amendment, because if the prosecutor does not need to prove that the defendant intended to threaten the victim, there is a chance he will be convicted of a speech crime by accident.  Crude or impolite speech could be the basis of a criminal conviction if the defendant did not understand how others would judge his words.

The government argues that the Third Circuit correctly concluded that the defendant’s speech should have been judged under an objective standard.  According to the government, juries should consider the context of the communication – how was the threat made and what was the reaction of third parties who were present?  Juries should not consider, however, the defendant’s subjective intent in making the comment.

The involvement of social media in these cases creates an additional complication.  When comments are posted on a Facebook page or a Twitter feed, it’s impossible to judge the speaker’s inflection.  Sarcasm isn’t always obvious.  The defendant’s argument that application of an objective test might cause innocent speech to be criminalized has some merit.  The Supreme Court’s decision in this case will have far-reaching consequences on defendants charged with criminal threatening.