By Mark Walsh. Cross-posted from the School Law blog.
The U.S. Supreme Court on Monday wrestled with threats made on social media, with some justices worried about when school administrators might need to respond to such content, and others wondering whether the “reasonable teenager on the Internet” should be the standard for evaluating whether threats are serious.
The case involves a Pennsylvania man, Anthony Elonis, who was 27 years old in 2010 when, after separating from his wife and losing his job at an amusement park, made threats on Facebook that included rap lyric-style musings about shooting up an elementary school.
During the oral arguments in Elonis v. United States (Case No. 13-983), Justice Samuel A. Alito, Jr. quoted from the school posting, which included the line, “Enough elementary schools in a 10-mile radius to initiate the most heinous school shooting ever.”
Suppose, Alito asked Elonis’s lawyer, John P. Elwood, “that this was altered a little bit, so at the bottom he puts, ‘just kidding, just kidding, laughing out loud.’ And at the top he puts, ‘Tone Dougie, aspiring rap artist.’ Okay? What’s a jury to do with that under your theory? That you have to get into the mind of this obsessed, somewhat disturbed individual to figure out whether he really knew that this would cause a panic on the part of the school officials and parents who found out about this?”
Elwood replied that juries must wrestle with such state-of-mind questions all the time. Elonis contends that his school rap was a variation of a song by the rap artist Eminem and that Elonis posted it as a “therepeutic” response to the challenges he was facing.
Elonis was convicted of violating a federal statute against making threats across state lines for the school rap and other Facebook postings, including violent language aimed at his estranged wife and at a female FBI agent. He served more than three years in prison while his appeal wound its way to the Supreme Court, where the legal question is whether true threats should be weighed under the objective standard of how a reasonable person would interpret the threatening language, as Elonis calls for, or a subjective standard of how a recipient would perceive the message.
Elwood told the justices that messages on social media can easily be misinterpreted as threat.
“Many of the speakers who are online and many of the people who are being prosecuted now are teenagers who are essentially shooting off their mouths or making sort of ill-timed, sarcastic comments which wind up getting them thrown in jail,” he said.
He noted a case in Texas where two teenagers were communicating in a video game chat room when one made a joke about shooting up a kindergarten and “eating one of their still-beating hearts.”
The youth was arrested and held for more than four months before being released on bond, and he still faces trial, Elwood noted. (The example is detailed in a friend-of-the-court brief filed on Elonis’ side by the Student Press Law Center.)
“Happily, Texas is one of the many states with the subjective-intent requirement,” Elwood said. “So there is a good chance he will be acquitted. But if you are talking about what a reasonable person would view that as, I would not want to bet a felony conviction ... .”
Chief Justice John G. Roberts Jr. told him that the context would make a difference. And he later pressed Deputy U.S. Solicitor General Michael R. Dreeben, who was defending the federal government’s conviction of Elonis, on that point.
What is the proper context for evaluating threatening statements, the chief justice wondered. “Is it a reasonable person ..., or is it a reasonable teenager on the Internet? ... Is it what the reasonable teenager thinks how [a message] would be understood by the recipient of the text?”
“It will depend on to whom he is communicating the statement,” Dreeben said. “We all know that if we’re communicating among friends, particularly in face-to-face context, we can say certain things that will be understood as sarcasm. But when we widen the audience, ... reasonable people are going to react to it by saying, ‘this requires attention, this is a threat against an elementary school.’”
It was far from clear how the justices will rule in the case, with some appearing to sympathize with opposing sides.
Justice Elena Kagan told Dreeben that a standard involving the speaker knowing he is going to cause fear was “not the kind of standard that we typically use in the First Amendment.”
“Shouldn’t we allow some kind of buffer zone here past the sort of reasonable-man negligence standard that you are proposing?” Kagan asked.
Justice Antonin Scalia, however, pressed Elwood about whether some of Elonis’ postings were “valuable First Amendment language that you think has to be protected, right?”
A true threat “has to reasonably put someone in fear. That’s all the government is insisting on,” Scalia added. “It may be a low standard, but to my mind it doesn’t eliminate a whole lot of valuable speech at all.”
A decision in the case is expected by next June.
Photo: A morning commuter makes her way past the Supreme Court in Washington on Dec. 2.--Carolyn Kaster/AP
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A version of this news article first appeared in the Digital Education blog.