Violent Facebook Posts: Threats or Protected Speech?

Everyone has bad days, and everyone has different ways of dealing with them. Some people go to bars, some go the gym, some go shopping… Soon, the Supreme Court will decide whether violently venting frustrations on Facebook will be classified as true, criminal threats, or a protected way to decompress.

2010 was a rough year for Anthony Elonis. His wife moved out and he lost his job. In response to these events, he took to Facebook. His posts were often written as lyrics or mimicking the comedic styling of others, and were specific and violent in theme. As a result, his wife called the authorities, and a court issued a protective order.

Unsurprisingly, he responded with violent lyrical threats referencing his wife, the judge, the sheriff’s office, and even elementary schools. Eventually, the FBI became involved. After a visit by two agents, guess how Elonis responded?

Direct references to killing one of the agents in another lyrically styled Facebook post.

When Is a Threat a Threat?

This case presents a few complicated legal questions. At the core, the Supreme Court should be clarifying when a threat really is a threat. According to Virginia v. Black, one of the flagship cases for true threats, the speaker need not actually intend to follow through with the threat. Indeed, the lack of First Amendment protection over true threats is to protect people from fear of the possibility of violence.

This offers little clarity on when words lose protection and become criminal in nature. In fact, courts across the country seem to pick and choose, on a case-by-case basis, whose intent and perception matter when applying a standard. Some look towards the subjective intent of the speaker, where others look towards whether the reasonable person receiving the message would feel threatened. Even where courts settle on a “reasonable” standard, they struggle to apply a consistent standard of reasonableness–for instance, is it the reasonable listener, or the reasonable speaker?

Why Does This Matter?

The first question many may ask is “why does this matter?” In today’s day and age, where communication can happen nearly instantaneously, the lack of clarity of when the First Amendment applies is troubling.

While Elonis’ method of therapy unfortunately struck fear into others, his case matters because it will be setting a new benchmark. While the current Black standard has been more of a grey area, it has likely kept courts cautious in how to treat speech. Now, a line will be drawn. Too strict of a standard, and free speech suffers; too loose, and the freedom to not feel threatened by violence does.

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” These famous words of Justice William Brennan succinctly define how we generally view speech in this country. Even though the sentiment comes from a time when flag burning and taking to the street to express anger was more common than logging onto social media to do so, hopefully the court will keep it in mind when deciding how to treat online speech.