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Supreme Court makes it harder to convict for online threats

Yesterday, the Supreme Court ruled in the highly anticipated case Elonis v. United States, its first ruling involving the questions of free speech and social media.

The court ruled in favor of Anthony Elonis, who had been convicted under a federal threat statute and jailed for 44 months after posting several explicitly violent comments on Facebook. A lower court had convicted Elonis on the basis of whether a “reasonable person” would have interpreted his words as a threat. Elonis argued that he should not have been found guilty in the absence of proof that he intended to threaten his wife, who had recently left him, and claimed that his words, which he categorized as rap, served a therapeutic function for him.

Solicitor General Donald B. Verrilli, Jr, arguing in favor of upholding the conviction, argued that Elonis “was aware of the meaning and context of his Facebook posts, and those posts communicated a serious expression of an intent to do harm.”

His posts included, for example, the following:

There's one way to love ya, but a thousand ways to kill ya,
And I'm not going to rest until your body is a mess,
Soaked in blood and dying from all the little cuts.
Hurry up and die bitch
“Fold up your [restraining order] and put it in your pocket. Is it thick enough to stop a bullet?"

The Supreme Court disagreed, saying that, in Chief Justice John Roberts’ words, “negligence is not sufficient to support a conviction." The ruling, which skirted First Amendment issues, did not clarify the legal limits of free speech when it comes to online threats. For companies, law enforcement officials, users of social media, and victims of intimate partner violence, the court did nothing to clarify what constitutes a “true threat.” The decision, instead, leaves further murkiness in its wake.

We spoke to Professor Danielle Citron, author of Hate Crimes in CyberSpace, and Sandra J. Badin, a coauthor of the National Network to End Domestic Violence’s amicus brief, filed in support of the government’s argument.

Were you surprised by the SCOTUS decision?

Badin: We were disappointed that the Court rejected the reasonable person standard, which had been adopted by the majority of the Circuit Courts of Appeal. We were also surprised by the Court’s decision not to announce what the correct standard is. Domestic abusers are using ever more sophisticated tools to stalk and threaten their victims from afar, including through social media. The Court’s decision not to announce the applicable standard for convicting abusers (and others) of communicating threats creates some uncertainty that will not be resolved for some time to come.

Citron: No, not really. The Supreme Court’s questions at oral argument made clear their focus was on the statute and whether criminal law requires some form of intent to warrant criminal sanction. As the Chief Justice explained for the majority in Elonis, the presumption is that criminal responsibility requires some form of criminal intent, or mens rea. Reasonableness, according to the majority, is an acceptable threshold for tort law but not criminal responsibility. The Court held that the defendant has to be aware that what he or she is doing is wrongful to warrant punishment.

What about the Court’s declining to address First Amendment issues in this case?

Badin: We are happy that the Court avoided the constitutional issue because we were concerned that the Court would hold that the First Amendment requires proof of subjective intent to convict a person of communicating a threat. It would potentially have undone years of legislative progress, especially at the state level, to increase protections for victims of domestic violence. But we expect that the Court will have to address the constitutional question in the not-too-distant future, when the lower court announces the applicable standard, and that standard is again challenged on First Amendment grounds. It remains a real fear that we will have to face again when the Court takes up the constitutional question once more.

Citron: It was a dodge, to be sure. The Court took a minimalist approach, avoiding the constitutional question because it could base its decision on statutory interpretation.

What messages do you think this ruling sends to people inclined to use threats?

Badin: It’s a bit of a mixed message. On the one hand, the Court is signaling that prosecutors will have to do a bit more to convict people of making threats; showing that a reasonable person would, under the circumstances, have understood the communication to be a threat will no longer be enough. At the same time, it is very important to recognize that the Court rejected the standard urged by Elonis—namely that the statute requires the government to prove that the speaker actually intended to convey a threat. It remains to be seen how much harder (if at all) it will be to convict people of making threats, but today’s decision should not be interpreted as granting a license to threaten. It does not.

Citron: It could be read to show that the criminal law has protections built into it to ensure that people are not imprisoned for behavior that they did not understand as morally wrong or culpable. It does not give a free pass to harassers or domestic abusers. Indeed, the opinion can be read in a positive light. The Court was invited to view threats online as different, somehow more protected than threats made face to face. The Court declined that invitation despite amicus arguments to the contrary. And that is a very good thing. If you read Justice Alito’s concurrence/dissent, you see NNEDV’s amicus brief cited for the proposition that true threats are categorically excluded from protection under the First Amendment because they cause substantial emotional distress to targets and their loved ones and sometimes augur physical violence. Justice Alito explained that domestic abusers capitalize on social media to terrorize ex-intimates and that such activity can’t be dressed up as art when the defendant consciously disregards the fact that his or her words will terrorize victims.

What practical impact, if any, do you see this ruling having in terms of social media platforms' approach to online threats?

Badin: It will be some time before we will be able to gauge the impact of this ruling on social media platforms’ approach to online threats. We remain hopeful that this case has helped to raise awareness of the increasing use of social media platforms and technologies by perpetrators of abuse to stalk, harass, intimidate, and threaten their victims. We also hope that the ruling will spur the folks who run social media platforms to take a more proactive role in preventing the use of these platforms by abusers to perpetrate their abuse.

Citron: Probably not much. The well-regarded social platforms don’t just hand over their users’ IP addresses. They rightly wait for some form of process—a warrant, court order, or John Doe subpoena. That will continue.

Was there a different decision that you hoped the Court had reached?

Badin: We had hoped that the Court would affirm that the reasonable person standard is sufficient to sustain convictions under all threat statutes. The reasonable person standard is best suited to protecting victims of domestic violence from the very real harms caused by threats of violence—the paralyzing fear and anxiety, the loss of sleep and the inability to work, the social and physical dislocation, and the social isolation, among other harms. The harms caused by threats of violence don’t depend on the speaker’s private intentions for communicating his threatening statements. The reasonable person standard focuses the inquiry on the right question—whether, in light of a statement’s content, and the context in which it was delivered, a reasonable person would have foreseen that his audience would regard it as threatening. This standard ensures that people are convicted only for objectively threatening statements, while at the same time not allowing people who make threats to hide behind claims that they were just joking or just venting their frustration.

Citron: I would have liked the Court to make clear that true threats are true threats under the First Amendment whether made via networked technologies or not.

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Soraya Chemaly
Director, WMC Speech Project, Activist, Writer
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