In October the United States Supreme Court is going to hear Elonis v. United States and [hopefully] finally determine when threats, specifically Internet threats such as those proscribed by 18 USC 875, should be taken seriously by law enforcement and criminal courts.
Anthony Elonis is from eastern Pennsylvania. He has currently served more than three years for threats he posted on Facebook against his ex-wife. In 2010 his wife left him and took their kids, then he was fired from his job. He started posting “dark and vengeful rants”. The ‘rants’ were directed at his ex-wife, an FBI agent and a class of kindergarteners. In some cases the rants were extremely graphic. His wife obtained a restraining order against him. After she received the protective order the threats against her increased.
Elonis didn’t only post threats. He often posted careful disclaimers in his posts intended to suggest that his comments were art or at least Free Speech. For example he posted comments like “Art is about pushing limits” and “I’m willing to go to jail for my constitutional rights. Are you?”
At issue in this case is the area of First Amendment law known as “true threats”. True threats are not protected speech under the First Amendment. The argument hinges over what legal standard should be used to judge whether a ‘threat’ is a ‘true threat’. The standard used in Elonis’ trial and backed by the Obama administration says a person could be found guilty of making a threat if an objective person would consider the Facebook posts threatening. Elonis’ attorneys and free speech advocates support an interpretation that would require the jury to find that Elonis intended the posts as threats. Some proponents of this standard argue this standard is more appropriate in the context of internet communication which can lead people to misinterpret messages.
The Supreme Court has held “true threats” to harm another person are not protected speech under the First Amendment. During the time the court has issued those rulings the court has warned that laws prohibiting threats must not infringe on constitutionally protected speech. That includes “political hyperbole” or “unpleasantly sharp attacks” that fall shy of true threats.
The Supreme Court is historically very protective of the First Amendment. In addition to the answering the question presented by the Petition, the court directed the parties to answer “Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant’s subjective intent to threaten.” The fact the court granted cert. on this issue may indicate that at least three of the justices do not think Elonis’ posts rose to the level of a true threat.