This week the Supreme Court agreed to hear Elonis v. United States. The case concerns Anthony Elonis, a Pennsylvania man whose wife left him and took their two children. Elonis began acting erratically at work and harassing female colleagues: According to the appellate court decision in the case, in one instance Elonis came into the office of one of his subordinates “where she was working alone late at night, and began to undress in front of her. She left the building after he removed his shirt.”
This sort of behavior got him fired, and he then began posting graphic, violent rants on Facebook about killing his wife in various ways, shooting up elementary schools, and slitting the throat of a female FBI agent who came to interview him about his violent posts. In court, Elonis claimed his posts were rap lyrics inspired by Eminem and should be protected by the First Amendment. The jury, unconvinced, convicted him of using interstate communication to make threats to harm people. He was sentenced to 44 months in prison.
Because Elonis’s writing occurred on Facebook, media coverage of the Supreme Court’s decision to take the case has described it as a matter of online speech, or, more specifically, Facebook threats, and whether they deserve First Amendment protection. “Do threats on Facebook count?” asked MSNBC. According to Eugene Volokh, a UCLA law professor specializing in First Amendment and cyberlaw, however, that’s not really what’s at stake here.
“This isn’t a case about Facebook vs. other things,” he told me. “Journalists and laypeople love to make these kinds of cases all about the medium, but generally speaking the law regards the medium as largely irrelevant. The question is the message, the question is the context, and the rules are generally the same, whether it’s a letter, or a fax, or skywriting. Or a Facebook post.”
The medium of a threat might matter in some instances, he says: ”If, for example, the medium is a paper wrapped around a rock thrown through your window or, for that matter, a cross being burned on your front lawn, that is more likely to be both reasonably perceived to threaten and be intended to threaten.” But those aren’t the media Elonis chose.
What’s at issue in the Elonis case is something broader: how to define what counts as a threat, whatever the medium. More specifically, does the intent of the alleged threatener matter or not? Does he have to be aware that the thing he writes or says would be interpreted as a threat, or is what he says or writes automatically a threat as long as a reasonable person, receiving it, would judge it to be threatening? Put another way, is a threat in the eye of the issuer or the receiver?
Reading Elonis’s sadistic, gory postings, it’s clear that most people would judge them to be threatening. It’s also, however, hard to see how he could have written them without meaning to scare the hell out of his wife. But, as in many Supreme Court cases, what’s being argued over isn’t Elonis’s guilt or innocence; it’s something more procedural. The jury in his original trial was instructed that he should be found guilty of threatening his wife and others based on the “reasonable person” standard of a true threat. Elonis is arguing that his intent should have been taken into account. That’s what the Supreme Court will decide. It’s very possible, as Volokh points out, that the Supreme Court would find for Elonis, giving him a retrial, only for him to be once again found guilty.