Analysis Law and Policy

Roberts Court Punts on Issue of Whether Online Threats Are Protected Free Speech

Jessica Mason Pieklo

The Court's decision in Elonis v. Facebook offered no clarity for those who face violent online harassment.

The Roberts Court on Monday sided with a Pennsylvania man previously convicted of sending violent threats to his ex-wife and others via Facebook, but did not go so far as to rule those online threats are protected by the First Amendment.

The case involves Anthony Elonis, who was convicted in 2011 under federal law for posting a series of threatening messages on his Facebook page. Elonis defended the statements as constitutionally protected free speech, claiming the Facebook statements were not threats but instead rap lyrics.

The legal question before the Court was: At what point do violent and abusive statements stop being considered a free speech right and instead become criminal speech?

The Court sidestepped that question almost entirely. Ruling that the jury had been wrongly instructed on the level of intent prosecutors needed to show to convict Elonis of making online threats, the Supreme Court overturned his conviction, sending the case back to the appeals court to sort out.

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Writing for the 7-2 majority, Chief Justice John Roberts said the federal government needed to prove more than that a defendant was negligent in making online threats or that a reasonable person would regard the statements as a threat in order to be convicted under the law at issue.

Elonis’ conviction was based solely on whether a reasonable person would have viewed his statements as threats, and while that standard is enough to impose civil liability in some cases, it is not enough to impose criminal liability here, Roberts wrote. “Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with the conventional requirement for criminal conduct—awareness of some wrongdoing, he wrote. In other words, it’s not enough that a reasonable person would feel threatened by Elonis’ statements; prosecutors needed to show that Elonis understood his online statements could be construed as threats.

On the central issue of the case, however—what constitutes a “true threat”—the majority punted, hanging its decision on the flawed jury instruction and declining to decide the rest of the case. “It is unnecessary to consider any First Amendment issues,” Roberts wrote.

Justice Samuel Alito filed a separate opinion, concurring with the majority on some points and dissenting in others. Where the majority failed to answer the question of whether Elonis’ statements were actual threats or whether they were constitutionally protected free speech, Alito stepped up, holding that he would have rejected Elonis’ constitutional claims. “Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace,” wrote Alito. “A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.”

While the statute at issue in Elonis did not directly impact abortion providers, reproductive rights and justice advocates were closely watching the case given the prevalence of threats levied against them. “Abortion providers are invested in the issue decided today because targeted harassment in the form of threats against them are an all-too-common occurrence,” David Cohen, associate professor of law at Drexel University and co-author with Krysten Connon of Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism told Rewire via email.

Cohen was critical of the majority’s decision:

The majority decision has the potential to create too much of a barrier to proving an intent to threaten. Justices Alito’s and Thomas’ separate opinions show a much better understanding of what it means to threaten and be threatened. They realize that context matters, something important to abortion providers who work in a field in which eight of their fellow providers have been murdered since 1993.

While there are not currently any cases before the Court involving threats to abortion providers, the issues raised in Elonis are echoed in cases pending in other courts where anti-abortion activists have tried to raise First Amendment free speech defenses against charges of stalking and harassing providers. Cohen continued:

Importantly, though, Elonis is about a different statute than what usually applies to threats of abortion providers. The Freedom of Access to Clinic Entrances Act applies to abortion providers and has different wording. Given the legislative history of FACE and its different language, there are strong reasons to interpret [FACE] in a different manner than how the Court interpreted the law at issue today and to view the context of anti-abortion violence as a key part of what is a threat of force and what intimidates an abortion provider.

Elonis’ case will return to the U.S. Court of Appeals for the Third Circuit, where the parties will try and sort out what evidence is needed for a conviction and what level of intent prosecutors need to prove. Elonis’ attorney will also likely try and argue his client cannot be re-tried because of constitutional protections against “double jeopardy.”

Meanwhile, federal prosecutors and courts across the country are also left with the task of figuring out just exactly what kind of evidence they need to convict someone of making online threats, as the issue of Internet safety isn’t going away anytime soon. The only guidance from today’s opinion says mere negligence, or being unaware of the legal consequences, is not enough for prosecutors to convict someone of sending online threats. But those communities subjected to the most vicious online abuses still have next-to-no legal recourse while the courts muddle through the mess the Roberts Court left behind today.

If there’s a silver lining in today’s opinion, it is that the Court was poised to make this situation so much worse by essentially wrapping the worst online trolling in the First Amendment and it didn’t. 

Meanwhile, Elonis faces separate, additional charges of domestic violence stemming from a fight with his girlfriend’s mother.

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