It's Legal to Threaten People Online If You're Just Kidding

The Supreme Court fumbles a digital speech case.


As so often seems the case when a court ruling errs on the side of freedom of speech, the Supreme Court decided today in Elonis v. United States to vindicate an all-world jackass.

With his victory, Anthony Elonis assumes his ignominious place in legal history alongside Larry Flynt and the Westboro Baptist Church. The decision overturns Elonis' 2010 conviction for making violent threats on Facebook, where the Pennsylvania man's venomous fantasies included: shooting up elementary schools, murdering his estranged wife, and slitting the throat of an FBI agent, all of which he wrote about regularly on social media. He argued that these tirades were not true threats, which have no legal protection, but rather therapeutic venting and lyrics. The Supremes agreed.

Here's an example of the "theraputic" posts that got authorities interested in Elonis, this one about his 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. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.

And another, this one a blank verse about school shootings:

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' case was widely scrutinized for how it could affect all social media users. As Gizmodo notes, this is the first time SCOTUS has weighed in on the legality of language we use to communicate online. This sets the precedent that even the most violent and unsettling post can't be prosecuted as a criminal action unless the government can also prove that it was intended as a threat and meant to be taken that way. 

Lower courts now are left to determine that standard. Justice Samuel Alito dissented, writing that: "The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court didn't explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess."

Following Alito's reasoning, the decision leaves the future of Facebook posting far from settled. Civil suits are still an option if you're being harassed, and local courts are going to have a lot of headaches figuring out jury instruction in cases where the defendant's social media history comes into question. For now, just be grateful for the Block button.

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