Anthony Douglas Elonis, whose violent, threatening Facebook posts earned him a 44-month prison term, won his Supreme Court appeal today, marking the first time the SCOTUS has had to examine the issue of free speech on social media.
According to CNN:
The Court said that it wasn’t enough to convict the man based solely on the idea that a reasonable person would regard his communications as a threat.
“Our holding makes clear that negligence is not sufficient to support a conviction,” wrote Chief Justice John Roberts.
The Court held that the legal standard used to convict him was too low, but left open what the standard should be. It is a narrow ruling and the Court did not address the larger constitutional issue.
Business Insider clarifies that last part even further, noting that “The court dodged a chance to make a wider argument about online free speech.”
The case brings into focus a distinctly 21st century question: Are posts on social media — like this one from Elonis: “Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined” — protected by the First Amendment? How seriously can you take threats posted on a forum dedicated to no-filter oversharing, like Facebook?
The appeal clearly acknowledges that Elonis, who was 27 at the time of his arrest, was known to make threatening statements, even off the internet. But he couched his Facebook posts as “rap lyrics” (inspired by Eminem) and with free-speech disclaimers:
After his wife left him, petitioner Anthony Douglas Elonis, under the pseudonym “Tone Dougie,” used the social networking Web site Facebook to post self-styled rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. These posts were often interspersed with disclaimers that the lyrics were “fictitious” and not intended to depict real persons, and with statements that Elonis was exercising his First Amendment rights.
Many who knew him saw his posts as threatening, however, including his boss, who fired him for threatening co-workers, and his wife, who sought and was granted a state court protection-from-abuse order against him. When Elonis’s former employer informed the Federal Bureau of Investigation of the posts, the agency began monitoring Elonis’s Facebook activity and eventually arrested him. He was charged with five counts of violating 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”
At trial, Elonis requested a jury instruction that the Government was required to prove that he intended to communicate a “true threat.” Instead, the District Court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat.
Though the ACLU was on Elonis’ side, noting in a brief that “Words are slippery things,” especially when taken out of context, domestic-violence and online-bullying opponents were not. And despite his victory in the courtroom today, “Tone Dougie” is still in federal custody; he was arrested during his supervised release last month for “simple assault/domestic violence and harassment,” charges for which he still must answer.
Top image: John P. Elwood, attorney for Anthony D. Elonis, speaks to reporters outside the Supreme Court in Washington, Monday, Dec. 1, 2014. AP photo by Susan Walsh.