U.S. Supreme Court to Weigh Threats on Social Media

By Mark Walsh — June 16, 2014 2 min read
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In a case with potential implications for public schools, the U.S. Supreme Court on Monday agreed to take up a case involving the free speech rights of those who make threats or deliver violent rants on social media such as Facebook.

The court agreed to hear the appeal of a Pennsylvania man who was convicted under a federal law of making illegal threats based on numerous threats and rants he put on his Facebook page, mostly directed against his estranged wife. The case is Elonis v. United States (No. 13-983).

Among the postings by Anthony Douglas Elonis, who was a 27-year-old amusement park employee at the time, was this one published in November 2010:

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 testified in court that the posting was a reference to the song “I’m Back” by the rap artist Eminem, in which the artist had criticized his ex-wife and fantasized about participating in the 1999 shootings at Columbine High School in Colorado.

Elonis was convicted for making unlawful threats against schoolchildren. Based on other violent Facebook postings aimed at his estranged wife that didn’t mention schools, Elonis was convicted of three other counts of transmitting in interstate commerce threats to injure another person. He was sentenced to almost four years in prison.

After a federal appeals court upheld the conviction, lawyers for Elonis appealed to the Supreme Court, arguing that there was a split among federal courts about whether so-called true threats should be weighed under a subjective or objective standard.

In Elonis’ case, the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, held last year that an utterance is an unprotected “true threat” whenever “a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm.”

Many other courts have followed that standard, but others have held that speech may be deemed unprotected by the First Amendment as a “true threat” only upon proof that the speaker subjectively intended the speech as a threat.

In a friend-of-the-court brief filed on Elonis’ side, the Thomas Jefferson Center for the Protection of Free Expression, based in Charlottesville, Va., urged the justices to grant review of the case to analyze its true-threat jurisprudence in light of “the emergence of social networking and other modern modes of communication that ... underlie the vast majority of contemporary threat cases.”

“By accepting the petition in this matter, this court can also address for the first time whether the
nature of the medium through which speech is conveyed affects a true-threat analysis,” the group’s brief says. “This is an important question because individuals increasingly face prosecution for alleged threats conveyed on new media, including Facebook, YouTube, and Twitter.”

School administrators are having to face some of those questions, not always as full federal criminal cases, but as disciplinary matters, and the Supreme Court’s decision in the case could affect student cases as well.

A version of this news article first appeared in The School Law Blog.