Are violent threats posted on Facebook — sometimes quoting songs or skits–– protected as free speech? The U.S. Supreme Court said today it will render judgment on that question.
In 2010, the wife of 27-year-old Anthony Elonis left him following seven years of marriage and took both children. Elonis, who lost his job at Dorney Park amusement park in Allentown, Pa., began posting Facebook threats directed at his ex-wife, former co-workers, a kindergarten class, and law enforcement officials. Such as:
“Did you know that it’s illegal for me to say I want to kill my wife?”
“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.”
“That’s it, I’ve had about enough/ I’m checking out and making a name for myself/ Enough elementary schools in a ten mile radius/ to initiate the most heinous school shooting ever imagined/ and hell hath no fury like a crazy man in a kindergarten class/ the only question is … which one?”
Elonis contended that some of the threats quoted from rap songs and such other sources as the routine of The Whitest Kids U’Know comedy group. He also posted:
“Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”
“When you’re talking about adults, it all comes down to the context and history of what was said [and who said it],” Current Analysis social media analyst Brad Shimmin told VentureBeat.
He added that if Elonis had been, for example, “a performance artist with a history of posting such things, it would be a different thing.” Instead, he was an angry divorced man with a history of run-ins with the police and various other kinds of anti-social behavior.
As Elonis continued to post the threats, his wife got a “protection from abuse” court order against him. But the rants continued, and he was arrested at the end of 2010.
At his trial in 2011, his wife testified that she feared for her life. The jury was instructed to find him guilty if a reasonable person could interpret his rants as threatening. His lawyers contended that posts intended for a small audience, where sources for some of the quotes might be recognized, require a different, more subjective standard.
Elonis was convicted on four counts of violating a federal statue prohibiting transmission of threats to kidnap or injure anyone and was sentenced to 44 months, plus supervised release for three years. He was released in February.
He contends he did not intend to hurt anyone and that the postings helped him work through his problems. Two federal courts have ruled that Elonis went beyond free speech in his posts.
The Supreme Court will review the appeals court’s decision in the fall to determine whether “conviction of threatening another person … requires proof of the defendant’s subjective intent to threaten,” instead of an objective, “reasonable person” standard.
For decades, the Court has said that “true threats” of harm are not protected speech.