In U.S Supreme Court says content focused in Facebook threat case

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The Supreme Court has issued its judgment on a high-profile online threat case, reversing a lower court’s judgment against a man who posted vicious messages on Facebook. But while it’s clearly guiding the debate, the Supreme Court steered clear of discussing when exactly protected speech becomes an unprotected threat — a difficult question that’s become especially important over the past year.

The court has changed the decision against Anthony Elonis, who was previously found guilty of four counts of transmitting threats. After his wife left him, Elonis wrote a series of Facebook posts fantasizing about killing her and others. He claimed that the posts, made in the style of free-form rap lyrics, were therapeutic and a form of constitutionally protected free speech, pointing to similar wife-killing fantasies by performer Eminem. His estranged wife, however, said she was afraid for her life after seeing them, going as far as to get a restraining order. A post about shooting children at an elementary school, then one about killing an FBI agent who questioned him about it, also ended up on the list of charges.

Elonis claimed that unless he deliberately to threaten his wife or anyone else with the posts, they couldn’t be taken as “true” threats. Prosecutors, though, said that intent shouldn’t matter — the real test was whether a “reasonable person” would find them threatening. While the Third Circuit federal court agreed with the “reasonable person” test, the Supreme Court now says that’s not enough. In a majority opinion, Chief Justice John Roberts said that the law must consider someone’s mental state when deciding threat cases.

“The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’ communications as threats, and that was error,” Roberts wrote. “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” He compared it to earlier cases where someone arguably committed a crime, but only because they were genuinely mistaken about the circumstances around it. In one example, a defendant took spent shell casings from a government bombing range, but the court found he wasn’t liable if he had good reason to believe the casings were abandoned.

This case has raised complicated issues, particularly because it’s not clear what a “reasonable” opinion would be. The internet can erase context and nuance around a joke, or it can make sending truly threatening statements easier. And depending on who you talk to, the standards for behavior can be very different. The ACLU has praised the decision to throw out “objective” judgment, saying this “properly recognizes that the law has for centuries required the government to prove criminal intent before putting someone in jail.”

The Supreme Court didn’t, however, actually decide whether or not Elonis was sending threats — or what constitutes threats more generally. It says the jury should have taken Elonis’ thought process, not just the content of the messages, into account. The case is going back to lower courts without a firm call on how much protection his speech should actually receive. “It is unnecessary to consider any First Amendment issues,” in fact, for this decision. But those issues will only get more important. If someone admits to sending a message to someone in order to make them fear for their life, for example, that’s a clear-cut threat. But what if they send that message for other reasons, while still recognizing that the recipient will probably feel threatened?

This is the question that Samuel Alito discussed in his differently opinion. Alito didn’t take issue with the idea that intent mattered, but thought the Supreme Court’s decision was incomplete. “The court’s disposition of this case is certain to cause confusion and serious problems,” he said. “Attorneys and judges need to know which mental state is required for conviction under [threat laws]. This case squarely presents that issue, but the Court provides only a partial answer.” Alito argues that even if Elonis wasn’t directly sending threats, he was still criminally reckless. “Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct,” the opinion says. “He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.”

At this point, the outside context would also matter. The difference between Eminem and Elonis, to Alito, is that someone is more likely to take a Facebook post as a direct threat than a recorded song. “To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.” While Alito doesn’t mention it, we’re more likely to see courts decide whether self-styled satirists can still make threats. In a relatively high-profile incident earlier this year, for example, a comedian apparently incorporated threats against real-life game developer Brianna Wu into a years-long performance art piece. The Elonis case can’t tell us how much the fact that it’s a joke matters, but it tells us that it does matter… at least to a point