Facebook is where we go these days to vent, complain, and generally sound off. And if you're Pennsylvania man Anthony Elonis, it's where you publish jokes and "rap lyrics" about slicing a co-worker's throat, shooting up a kindergarten, suicide-bombing FBI agents, and "bust[ing] this nut all over [his estranged wife's] corpse from atop [her] shallow grave."
Elonis never acted on any of these musings, but he was convicted in 2011 of making threats anyway, which was a federal crime with a potential five year sentence because he did it via "interstate" means, i.e. over the Internet. He was sentenced to 44 months in prison. He appealed his conviction to the Supreme Court, saying that he was just exercising artistic license, like Eminem rapping murder fantasies about his ex-wife, and not directly threatening anyone, because he hadn't "tagged" anyone in his Facebook posts.
In a highly-anticipated decision Monday, the Supreme Court decided in Elonis's favor, reversing the conviction and sending it back to a lower court. But it wasn't a victory for the right to make threats on Facebook or Twitter. The Justices punted on the speech issue, instead saying that the jury who decided Elonis's fate got flawed instructions on when exactly a threat is a threat.
The jury was told that Elonis should be found guilty if a reasonable person would have been threatened by his posts about:
- a kindergarten (his post read: "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.");
- an FBI agent ("Pull my knife, flick my wrist, and slit her throat, Leave her bleedin’ from her jugular in the arms of her partner");
- a co-worker (he posted a Facebook photo of himself holding a knife to her throat at a Halloween night at the amusement park they both worked at, captioned, "I wish");
- his wife (he wrote a lengthy Facebook post about how it was "illegal for [him] to say [he] want[s] to kill [his] wife,” inspired word-for-word by this Whitest Kids U Know comedy skit).
In deciding in Elonis's favor, the Court said the jury should have been instructed to rule on whether Elonis intended to threaten people who would see the threats— not whether they would feel threatened.(Justice Clarence Thomas dissented, and Justice Samuel Alito dissented in part and concurred in part.) "The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error," wrote Chief Justice John Roberts in the majority opinion. "Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state."
It's clear that the Court thought Elonis did make a threat, said University of Maryland law professor James Grimmelmann, but that the crime is "intending to cause people fear and apprehension."
"The case became a big deal because free speech advocates and anti-Internet abuse people were very concerned about the consequences, but it's not the nightmare either side was afraid of," added Grimmelmann. "It’s speech respective: You can’t be prosecuted for a statement you had no idea someone else could read as a threat. On the other side, you can’t use a 'it’s just Facebook' defense when you write threatening things on a social networking platform."
The decision comes on the heels of the Gamergate affair, which involved graphic online threats made against women. Game commentator Anita Sarkeesian and game developer Brianna Wu received threats of rape and violence. Sarkesian had to cancel an appearance at a Utah State after an email threatening a mass shooting if she spoke and Wu left her home after someone tweeted he had a "K-bar and I’m coming to your house so I can shove it up your ugly feminist c—t."
Even though the Court's decision means that Elonis could still be convicted by a lower court as could the Gamergate crowd when making serious, intentional online threats, free speech advocates were pleased. "It's overall a net win," said Hanni Fakhoury of EFF, which filed an amicus brief in the case. "It makes it a little more difficult for the government to prosecute people based on speech that is not really meant to convey a threat or that a person wouldn’t suspect would be treated as a threat."
Meanwhile, University of Maryland law professor Danielle Citron said the decision could make it harder for people to fight online abuse, because it's not enough to feel threatened by a tweet or a barrage of tweets — the person threatening them really has to mean it. "On Twitter, a troll already feels emboldened because we have very few threat and cyberstalking prosecutions," said Citron. "The Elonis decision means the feds have to show both than [an abuser] wrote the tweet and that they intended to scare and freak out the recipient. It makes it harder to prosecute, so there’s a potential negative impact."
Facebook said it wasn't commenting on the case, or whether Facebook posts like the ones Elonis made violated its Terms of Service. And Elonis, who was arrested for domestic violence involving his girlfriend's mother earlier this month, according to RH Reality Check, did not respond to an inquiry. He still maintains in social networking messages on Twitter and Facebook that he was simply exercising his right to free speech, even when that speech makes others uncomfortable. In March, he tweeted some Carly Rae Jepson's lyrics, "Who gave you eyes like that? Said you could keep them?" adding a knife emoji to change the context.
Justices Alito and Thomas wrote, respectively, that the Court's decision would cause "confusion and serious problems" and "throw everyone from appellate judges to everyday Facebook users into a state of uncertainty." Alito complains that it's still not clear what kind of intent a threat-maker needs to have: does he have to intend to cause fear, know it will cause fear or "recklessly" not care if it causes fear? That remains unresolved.