Defining a 'True Threat'

The Supreme Court considers the boundaries of free speech on social media.

In 2010 the wife of aspiring rapper Anthony Elonis left him, taking their kids. Under the name "Tone Dougie," with a public profile, Elonis took to Facebook to vent over the breakup. Griping, bad-mouthing, and oversharing on social media are nothing new. But Elonis's menacing posts took things to a whole different level, and he ultimately was sentenced to 44 months in prison on federal charges of making a threat of personal injury in interstate commerce. (See United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013), cert. granted, 134 S. Ct. 2819 (2014).)

Elonis, a Pennsylvania resident, has appealed his case all the way to the U.S. Supreme Court, where the resulting oral argument last December was robust. The case has pitted free-speech and civil rights advocates and journalists on one hand against battered women's groups and law enforcement on the other. Fifteen amicus curiae briefs were filed. The justices peppered the discussion with numerous questions and comments, as they seemed to struggle with where to draw the line between threats and self-expression.

The federal circuits and state courts of last resort across the country are split on this issue. The Ninth Circuit and several states hold that a subjective test must be read into statutes that criminalize threats and require proof of the defendant's intent. In United States v. Bagdasarian (652 F.3d 1113 (9th Cir. 2011)), which involved a federal statute prohibiting threats to harm a presidential candidate, the Ninth Circuit found that determining whether offensive, invective-laced racist statements on a Yahoo message board about Barack Obama getting shot were true threats required proving that the poster intended to threaten.

In contrast, California and some other state and federal jurisdictions articulate an objective standard for "true threats." In People v. Lowery (52 Cal. 4th 419 (2011)), which involved a statute prohibiting "willfully" threatening violence against a crime witness (see Cal. Penal Code Â§ 140(a)), the California Supreme Court required proof that a reasonable person would understand a statement - when considered in its context and surrounding circumstances - to communicate a serious expression of an intent to commit unlawful violence.

Elonis posted comments about smothering his ex-wife, dumping her body, and making it look like a rape and murder. "There's one way to love ya," Elonis wrote, "but a thousand ways to kill ya." He posted about dressing his son for Halloween as "Matricide," in a costume with his ex-wife's head on a stick. In response to her obtaining a protection from abuse order, known as a PFA, Elonis posted some lyrics on Facebook: "Fold up your PFA and put it in your pocket / Is it thick enough to stop a bullet?"

His lyrics also include: "I've got enough explosives / to take care of the state police and the sheriff's department." And: "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?"

These gems drew the attention of the FBI, and an agent visited his home. Afterward, Elonis posted a composition entitled "Little Agent Lady": "Took all the strength I had not to turn the bitch Ghost," he wrote. He also claimed he was wearing a bomb ready to detonate throughout the interview.

Elonis did not tag his ex-wife or law enforcement officers in the posts; they were not his "friends" on Facebook; and his Facebook profile included a disclaimer that his posts were "fictitious lyrics." One of the posts contained an emoticon of a face sticking out its tongue, which Elonis argued indicated the post was in jest. Despite this, in December 2010 he was charged with violating 18 U.S.C. § 875(c), which prohibits interstate communications containing threats to kidnap or injure another person. He was then convicted.

At trial, Elonis's attorneys asserted the "I didn't mean it" defense. They argued that his statements were not subjectively intended to threaten anyone but were lyrics. Elonis testified that he was inspired by musician Eminem, who famously rapped in "Kim" in 2000 about wanting to kill his ex-wife. Elonis's defense team argued that his statements are protected by the First Amendment.

The federal trial court in Pennsylvania set an objective standard. It instructed the jury that a true threat "must communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," distinguishing it from "idle or careless talk, exaggeration, something said in a joking manner or an outburst of transitory anger."

In his appeals, all unsuccessful so far, Elonis has argued that the "true threat" exception to the First Amendment ought to be governed by a subjective standard under Virginia v. Black (538 U.S. 343 (2003)). In that case, involving a Virginia statute that criminalized public cross-burning intended to intimidate people, the Supreme Court held that the phrase "true threat" applies to "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." (See 538 U.S. at 359.)

Conflict between the subjective and objective definitions of true threats is compounded in the context of online communications, which can be read by a recipient in any - or many - jurisdictions. Elonis and his counsel say an objective standard is problematic because the "inherently impersonal nature of online communications makes such messages inherently susceptible to misinterpretation." They say that risk and the potential lack of context for online statements require a jury to assess the speaker's intent, rather than apply a standard based on how a hypothetical "reasonable person" might react.

During argument in December, referring to the Court's decision in Black, Justice Anthony Kennedy commented, "I'm not sure that the Court did either the law or the English language much of a good service when it said 'true threat.' It could mean so many things. It could mean that you really intend to carry it out; you really intend to intimidate the person; or that no one could possibly believe it." Chief Justice John Roberts observed that, under Elonis's theory, a defendant would simply have to say a comment was "therapeutic" or "art." And nearly all the justices had questions, including about how the government would prove what was in the mind of the speaker, what level of intent is required, and whether a negligence-type standard works when the speaker does not know or appreciate the effect of his statements. Justice Samuel Alito further worried that the standard could be "a roadmap for threatening a spouse and getting away with it."

The Court's ruling will significantly affect future prosecutions of criminal threats and resolve inconsistencies among lower courts. And it will likely focus on the importance of context in analyzing online statements, where the wall between protected speech and criminal speech can be thin.

Traci I. Park, a partner at Burke, Williams & Sorensen in Los Angeles, represents private-sector management and public entities in employment litigation, and she regularly advises clients on social media issues.

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Kari Santos

Daily Journal Staff Writer

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