WASHINGTON, D.C. — The Supreme Court addressed online speech for the first time Monday when it heard a case to determine how far First Amendment protections extend on social media sites like Facebook.
In the case Elonis v. United States, the Court will determine if a conviction for threatening another person on social media requires proof of the speaker’s subjective intent to threaten.
In 2010 Anthony Elonis of Pennsylvania was convicted under a federal threat-speech statute for posts on Facebook in which he fantasized about killing his estranged wife and federal law-enforcement agents.
“There’s one way to love you but a thousand ways to kill you,” Elonis wrote in one Facebook post. “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
During oral arguments Monday morning, Chief Justice John Roberts and Justice Stephen Breyer questioned the role of Elonis’ intent and purposes for the Facebook posts he wrote that his employer, his ex-wife and an FBI agent perceived as threats. Elonis has long insisted the Facebook posts were rap lyrics — reminiscent of Eminem and Wu-Tang Clan — and were therapeutic self-expression after his wife left him.
“If you have a statement made in the style of rap music as this one or several of these were, is the reasonable person supposed to be someone familiar with that style and the use of what might be viewed as threatening words in connection with that music or not?” Roberts asked.
Elonis’ attorney, John Elwood, said a court cannot convict Elonis without considering his intent behind the social media posts. But Michael Dreeben, deputy solicitor general at the Department of Justice, argued Elonis should not be allowed to use threats in the “guise of rap music” to avoid conviction.
“The government’s theory is that it is enough to make someone criminally responsible if you’re a speaker of English and you know the words you are saying,” Elwood said. “But we’ve all had experiences where we all know that words can have two different meanings.”
In October 2011 Elonis was convicted and later sentenced to 44 months in prison and three years probation after a district court judge instructed the jury that Elonis’ intent behind the posts was irrelevant and it only mattered what a reasonable person would perceive as a threat.
Elonis filed an appeal with the United States Court of Appeals for the Third Circuit to argue the subjective intent for the posts should be considered. The FIrst Amendment does not protect “true threats,” and Elonis claimed in the appeal his posts were not true threats because he did not intend to threaten the people mentioned in the posts.
The Third Circuit upheld the lower court’s ruling in September 2013, and Elonis filed a petition with the United States Supreme Court to reverse the decision.
The Student Press Law Center, the Electronic Frontier Foundation and PEN American Center argued in an amicus brief a person cannot be convicted for making threats online without proof of, at least, the knowledge that a known recipient would feel threatened. The brief explains that the Third Circuit ruling affects students and young adults because they are “prolific users of social media.” Upholding a ruling that criminalizes threats transmitted through social media would chill students’ First Amendment rights, according to the brief.
According to the brief, social media provides discussion and interactions that include speech that “may be unsavory or even distressing to some recipients, but this is precisely the type of speech the First Amendment is designed to protect.”
SPLC staff writer Anna Schiffbauer can be reached by email or at (703) 807-1904 ext. 127.