When you post something online, what’s the difference between making a threat and striking a pose?
The Supreme Court on Monday will hear arguments in a case that raises that question. It involves a challenge by a Pennsylvania man to his conviction in 2011 for threatening his wife, his former co-workers and others in a series of posts to his Facebook page.
After his wife left him and he lost his job at an amusement park, Anthony Elonis adopted the pseudonym “Tone Dougie” and published musings and lyrics that he says he penned not as a statement of his beliefs but solely as therapy for his pain.
One post, which he published two days being fired, read:
Y’all saying I had access to keys for the f#$king gates, that I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark and foggy to secure your facility from a man as made as me. You see, even without a paycheck I’m still the main attraction. Whoever thought the Halloween haunt could be so fucking scary?
Another, which Elonis posted after his wife obtained a protection order, stated:
Fold up your protection-from-abuse order and put it in your pocket. Is it thick enough to stop a bullet? Try to enforce an order that was improperly granted in the first place.
That and other writings earned Elonis a sentence of 44 months in prison for violating a federal law that prohibits “transmitting in interstate commerce” a threat to injure another person or group of people.
Threats of violence against a particular person or group of people – so-called true threats – are not protected by the First Amendment.
At trial, Elonis asserted that his postings were similar to lyrics by rappers such as Eminem, who in songs has fantasized about killing his ex-wife. With that in mind, Elonis asked the judge to instruct jurors they could convict him only if they found that Elonis intended to communicate a threat.
However, the court instructed the jury that a statement constitutes a true threat — and thus beyond the protection of the Constitution — when a “reasonable person” would interpret the statement as “a serious expression” of an intent to inflict injury.
On appeal, Elonis contends that true threats require a subjective intent to threaten another person. That’s especially true online where messages may be seen by anyone, according to the American Civil Liberties Union and other groups. As the groups write in a friend-of-the-court brief:
A message posted to a publicly available website or mailing list is potentially viewable by anyone with an Internet connection anywhere in the world. A speaker may post a statement online with the expectation that a relatively small number of people will see it, without anticipating that it could be read – and understood very differently – by a much broader audience.
An objective test for online communication “would inevitably chill constitutionally protected speech, as speakers would bear the burden of accurately anticipating the potential reaction of unfamiliar listeners or readers,” the groups say.
For its part, the Justice Department, which is pressing the court to uphold the conviction, argues that the requiring a subjective intent to threaten would undermine the law’s goal of protecting people from a fear of violence regardless whether the speaker intended the statement to be harmless.