Supreme Court to Rule: Are Threats Made on Facebook Protected Under Free Speech Rights?

The high court has agreed to consider a case that will put social media behaviors on trial.

(Photo: Bill Hinton/Getty Images)

Jun 17, 2014· 2 MIN READ
Solvej Schou writes regularly for TakePart, and has also contributed to the Associated Press, Los Angeles Times,, and Entertainment Weekly.

After Anthony Elonis’ wife took their two children and left him, and he lost his job, the Pennsylvania man vented his frustration on Facebook, posting rants about killing his estranged wife, a class of kindergarteners, and an FBI agent, sometimes in the form of rap lyrics.

“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts,” wrote Elonis, who was sentenced to nearly four years in federal prison for the 2010 threats, which were never carried out; he claims they resulted from depression and weren’t intended as violence.

With Facebook, Twitter, and other social media a sprawling, modern-day sounding board for daily—if not minute-by-minute—diatribes awash in impulses and hot emotions, what is the line between online comments protected as free speech and threats punishable as a crime?

That’s the main question up for debate by the Supreme Court, whose decision Monday to review Elonis’ case next fall was applauded by free speech groups such as the Thomas Jefferson Center for the Protection of Free Expression. They want clarity over the issue of what constitutes a “true threat,” which is speech the First Amendment doesn't protect. The court will review whether it's enough to show that a "reasonable person" would regard the speech as threatening or whether proof is required of the defendant's intent to threaten.

“The major theme of the brief we filed is to ask the question of the court, ‘Shouldn’t new media change the analysis of what a true threat is?’ ” said Josh Wheeler, director of the Thomas Jefferson Center. “Before it was traditional face-to-face confrontations, and now we have very different forms of communication, and people don’t necessarily see who posts things online. To put somebody in jail for pure speech ought to require that you show that person intended to make you feel threatened.”

It’s been 11 years since the Supreme Court set a “true threat” precedent.

In 2003, the high court ruled in Virginia v. Black that a state prohibition on cross burning was unconstitutional because the law lacked proof the Ku Klux Klan intended intimidation by burning a cross. Wheeler noted that lower state and federal courts have since then been divided between a person’s subjective intent to threaten and an objective interpretation of a threat, the most widely used bar of a “true threat.”

This past decade’s digital explosion of anonymous Internet trolls, mass shooters taking to YouTube and other social media, and the rise of cyberbullying has further complicated matters.

“There’s the common saying ‘If you want to write an angry letter to someone, wait 24 hours before you write it,’ ” says Wheeler. “Now, with the Internet, people give into that impulse right away. With instant communication, people feel they need to express without inhibition.”

Future cases involving social media and what’s considered a “true threat” will certainly be impacted by the Supreme Court Elonis review. The court, in past similar cases, has declined involvement.

In 2013, for instance, the Supreme Court let stay the 18-month sentence for Iraq war veteran Franklin Jeffries II, who was convicted for threats to a public official after uploading a YouTube video on the eve of a Tennessee court hearing in his custody dispute over his daughter. In the video, he sang, “If I have to kill a judge or a lawyer or a woman I don't care. Take my child and I'll take your life. I'm not kidding, judge, you better listen to me."

Florida woman Ellisa Martinez served a two-year sentence for emailing a conservative radio station in 2010 about gun rights and planning “something big” at a Broward County, Fla., school or government building, leading to county-wide school lockdowns.

She, like Elonis, filed a Supreme Court appeal. Her Miami-based attorney, Samuel Randall, says she had attempted to make a satirical political point with her email and never intended harm.

“Ellisa views this, the Elonis case, as an important case for First Amendment rights for people to engage in political discourse,” said Randall. “It has broad implications for modern speech.”