The Supreme Court case that could kill online free speech — or curb online harassment

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Today the United States Supreme Court will hear oral arguments for Elonis v. United States, a case that could define the limits of the First Amendment on the Internet. A Pennsylvania man, Anthony Elonis, posted several violent comments on Facebook in 2010 stating that he wanted to kill his ex-wife for leaving him and taking their children with her. He was convicted and sentenced to 44 months in prison on four counts of “making threats.”


Now, Elonis is before the Supreme Court arguing that his threats should not have been taken seriously, as they were just made online, and did not constitute “true threats.” And some prominent Internet activist groups are supporting him. Why?

We've broken down the case for you, and what the eventual Supreme Court decision could mean.


What happened?

After being dumped, Elonis began posting violent comments to Facebook. "There's only one way to love you but a thousand ways to kill you/ I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts," he wrote in one particularly gruesome post. His ex-wife obtained a restraining order against Elonis based on these statements.

But the threats escalated. In subsequent messages, Elonis stated that he had "enough explosives to take care of the state police and the sheriff's department," that he was going to shoot up a kindergarten class, and that he would slit the throat of a female FBI officer who paid him a visit because of his comments.

During this time, Elonis claimed that his statements were rap lyrics, a form of artistic expression, and were therefore protected under the First Amendment. A jury disagreed, and he was sentenced. Because the threats were made online, and using the Internet constitutes engaging in interstate activity, it was a federal crime.


What is being argued?

The First Amendment protects most kinds of speech, but not all speech. Germane to this case, “true threats” to cause someone harm are not given constitutional protection. But the court has “has not specifically said how courts should decide what is (or is not) a ‘true threat.’


At the heart of Elonis's defense is Virginia v. Black, a 2003 Supreme Court case that overturned the conviction of three individuals who were found guilty of cross burning. The Court ruled that a part of the Virginia law used to find these men guilty was unconstitutional because it declared that the mere action of burning a cross was evidence of a "true threat," regardless of the context of the cross burning.

Under this interpretation, all cross burnings would be considered punishable crimes, even Madonna's "Like a Prayer" video.

The court did say that Virginia could have a law banning cross burning that didn't violate the First Amendment, so long as it contained an "intent to intimidate" provision.


Elonis is arguing that the jury that convicted him was instructed by the court to perceive his comments as a "true threat" if a reasonable person would assume that Elonis actually had the intention of hurting people. This, Elonis argued, was unconstitutional because Virginia v. Black raised the bar for what needs to be proven in order for something to qualify as a "true threat." In order for a statement to be a "true threat," the prosecution needs to prove that the individual intended for his words to be perceived as a threat. Elonis wants the case to revolve around his “subjective intent,” not what might be inferred by a reasonable person from the statements themselves.

The United States Court of Appeals for the Third Circuit—the last stop before the Supreme Court—sided against Elonis, ruling that Virginia v. Black was vague enough that it didn't outright set the "subjective intent" as the land of the law, and that multiple circuit courts had used the "reasonable person" test since Virginia v. Black without consequence.


"The majority of circuits that have considered this question have not found the Supreme Court decision in Black to require a subjective intent to threaten," the court's decision stated.

What does the Supreme Court have to decide?

The Supreme Court, according to the National Constitutional Center, has to rule on two things. The first is whether the law used to convict Elonis required the prosecution to prove that he intended to threaten, or if the "reasonable person" metric is more than enough. The second is whether the same "subjective intent" is needed to classify speech as a true threat and therefore disqualify it from First Amendment protections.


On a much, much lesser scale, the Supreme Court could decide whether rap music and lyrics constitute an expression of art instead of statements meant to be taken literally. In March, the New York Times wrote a story about how more and more prosecutors are using lyrics against rappers as statements of admission of a crime. The rap question is enough of an issue that rap scholars Professors Erik Nielson and Charis E. Kubrin—along with the Marion B. Brechner First Amendment Project—filed an amicus brief in support of Elonis and his so-called rap lyrics.

How does this affect people on the Internet?

Elonis v. United States is a significant case because it's the first time the Supreme Court has taken a case dealing with First Amendment protections and how they apply to the Internet. Because of its importance, various organizations have filed amicus briefs compelling the Court to rule on one way or the other.


On one hand, you have organizations like the the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) arguing that if the Supreme Court doesn't establish a subjective intent requirement—what Elonis is asking—then it makes a lot of people susceptible to prosecution. It would be a slippery slope where an offhand comment made by a person could be perceived to be as a legitimate threat.

"Today, a significant amount of speech on political, social, and other issues occurs online, and is often abbreviated, idiosyncratic, decontextualized, and ambiguous," writes the ACLU. "As such, it is susceptible to multiple interpretations, making a subjective intent requirement particularly necessary to ensure that protected online speech is neither punished nor chilled."


This ruling, for example, might have serious implications for Justin Carter, a Texas teen who made a comment about shooting up a school while playing the online game League of Legends. Carter has maintained that his statements were taken out of context and that he was merely joking.

On the flip side, organizations like the Domestic Violence Legal Empowerment and Appeals Project argue that Elonis doesn't get a free pass because he made the statements online. A threat, regardless of how it is expressed, is still a threat.


"Petitioner suggests that his threats are entitled to heightened First Amendment protections because they were disseminated by use of the Internet," their amicus brief reads. "Perhaps similar claims were made by the first person charged with making a death threat conveyed by telegraph or telephone. Petitioner's argument should be equally unavailing."

Others, like the National Network to End Domestic Violence (NNEDV) argue that using the speaker's intent to determine whether speech qualifies as a "true threat" isn't enough because it does nothing to protect the targets of said statements.


"The recipient of a threatening message does not—and indeed cannot—know the private motivations the speaker had for sending it," the NNEDV points out. "She can only react to the message based on its objective character. If it is objectively threatening, she will predictably fear for her life and will likely take various precautions in order to protect herself."

This line of reasoning is particularly timely given the recent Gamergate controversy, which shone the national spotlight on  the rampant misogyny and online harassment of women by some dark corners of videogame culture.


It goes without saying that there's a lot at play in this decision. The Supreme Court must strike a balance between protecting online speech while making it harder for potentially dangerous individuals to be in the legal clear by appending "jk" at the end possible threats.

Fidel Martinez is an editor at He's also a Texas native and a lifelong El Tri fan.

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