The United States Supreme Court answered this question last week with a resounding “maybe.”
That “maybe” comes in the case of Elonis v. United States. Anthony Elonis wrote some violent-sounding posts on Facebook detailing what he’d like to do to his ex-wife, an FBI agent, assorted police officers, and a local kindergarten. The words seemed threatening, and so Elonis was arrested and convicted for sending threats across state lines in violation of the Interstate Communications Act, which reads, in part:
Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. [18 USC § 857(c).
Even though Elonis was writing to and about people near him in Pennsylvania, writing anything on Facebook counts as interstate communication, because even local Facebook messages may travel across state lines. There’s an earlier post about the Elonis case here.]
On parole after serving three years in prison, Elonis asked the Supreme Court to reverse his conviction on the grounds that his Facebook posts weren’t threats but exercises in free speech: he called them artistic and therapeutic expressions of emotion, in the guise of rap lyrics that were prompted by his divorce. Plus, they couldn’t be threats because he never had any intention of carrying them out. The government countered that the law doesn’t require proof of intent, so Elonis’s conviction should stand because any reasonable person would interpret his Facebook posts as threats.
The Supreme Court was not convinced by either argument. It’s true that the law under which Elonis was convicted is silent on intent, but all crimes require proof of intent. As Chief Justice Roberts put it in his opinion, “Wrongdoing must be conscious to be criminal.”
Sometimes criminal intent is hard to tease out. The Shadow may know “what evil lurks in the hearts of men,” but judges and juries might not find Elonis’s protests that he meant no harm convincing. As a result, intent is often determined indirectly and in context, but it must be determined. Since the trial judge instructed the jury not to weigh intent in its deliberations, the Supreme Court reversed Elonis’s conviction. With better jury instructions, the conviction might have stood.
The Court’s Elonis ruling is narrow: it doesn’t reach the First Amendment argument that Facebook posts are protected artistic speech. And it doesn’t reach another question raised only tangentially in the case: that threats made recklessly violate the law. But the Court indicated it might welcome reviewing a reckless threat case.
Elonis was convicted for negligence: he simply didn’t consider whether his Facebook status updates would alarm anyone. He didn’t care that his wife was afraid for her life when she read,
If I only knew then what I know now . . . I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.
He didn’t care that local schools were put on alert after he wrote,
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?
Negligence could make Elonis liable for civil damages, but it’s is not enough to secure a criminal conviction. But recklessness might be. In his opinion, Chief Justice Roberts made it clear that a post may be a threat if it was posted “with knowledge that the communication will be viewed as a threat.”
The Court left open the possibility that it would uphold threat convictions if it was determined that a poster like Elonis was reckless, that he wrote his ominous words knowing, but not caring, that others would find them threatening, even if he didn’t intend to follow through. It’s the knowing, the criminal intent, that’s the key difference between negligence and recklessness. But because the judge gave bad instructions, the jury at Elonis’s trial never got to consider that question.
You might think that after Elonis, social media ne’er-do-wells can say whatever they like with impunity—all they have to do is cross their fingers and purr, “Just kidding,” or “I did it for my art,” or “It was something I needed to work through.” According to the New York Times, this is a small price to pay to protect free speech:
If the court had upheld the lower standard [of negligence] used in the Elonis case, it would make it easier to criminalize all sorts of violent speech that flies around the Internet every day, much of it not intended to threaten anyone.
It makes sense to consider intent, because people can feel threatened by all sorts of innocent online speech. But Elonis isn’t in the clear just yet. If there’s a new trial, a properly-instructed jury could find his Facebook posts reckless and convict him. Even if there’s no new trial because of double jeopardy (the Fifth Amendment bars being tried for the same crime twice), Elonis won’t be threatening anyone on Facebook for a while, because he’s in jail on a new charge: this time it’s domestic violence, not the verbal kind, a crime in itself and a violation of his parole. Also, if he ever does get back on social media, Elonis may not be able to resist the temptation to scare more people online. If so, prosecutors will be waiting to demonstrate that he knew, but didn’t care, that his posts would be perceived as threats.
Trolls shouldn’t relax, either: one strong lesson from Elonis is that once the right Facebook case comes along, online threats may prove a lot easier to prosecute.
Update: Sometimes Facebook rants turn out to be threats after all. The day after I uploaded this post, a man shot up the Dallas police headquarters. According to Dallas police chief David Brown,
Although the man posted angry rants on social media threatening to kill police officers, there had been no indication that he was planning to carry out an attack.
