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Online Free Speech Limitations: Elonis v. United States

On June 1, 2015, the Supreme Court of the United States ruled in favor of Anthony Elonis in Elonis v. United States, regarding free speech limitations as implemented via social media platforms. This ruling was the first time the Supreme Court raised implications of free speech related to social media.

Under what circumstances was Elonis indicted?

Anthony Elonis was convicted on four separate counts for postings on social media, specifically Facebook. The federal statute he was convicted under, 18 U.S.C. § 875(c), states as follows: “Whoever transmits…any communication containing…any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” Elonis sparked concern after posting graphic threats involving the rape and murder of his ex-wife, detonation of bombs in the presence of law enforcement, and shooting up an elementary school, all under an alias. Elonis did not dispute that the statements were posted, but declared that they were merely expressions of his frustration. He claimed that the trial court incorrectly instructed the jury on the standard of a “true threat” in which the expressions were interpreted as more serious under the context.

What does this case mean in the context of the First Amendment?

Elonis argued that a negligence standard, which regulates free speech, is contrary to the First Amendment. Although, the First Amendment protects freedom of speech, it does not include “true threats.” The government claimed that if a reasonable individual could regard his statements as threats, then they were unprotected by the First Amendment. This was justified by the rationale of law in most federal circuits that fear is intrinsically harmful. Further, society has an interest in protecting individuals from fear, which could be induced by frightening or threatening language, even if such language is unintentional. This objective standard goes further to say that as long as the statements are transmitted within interstate commerce, the statute must not have the “…intention to inflict bodily injury or take the life of an individual.” Statements made on the web, may be read by, or communicated to, an array of people that the speaker does not necessarily know to be present. This means that law enforcement personnel could monitor the communications and could become the recipients. Hence, online posts may lead to prosecution if the communication is interpreted as a threat, regardless of the target’s awareness of the post.

Why was this case heard by the Supreme Court?

Many activist groups saw the Third Circuit’s objective standard of “true threats” as a risk towards free speech itself. However, the high court was concerned that the subjective standard would encourage speakers to threaten others without bounds. The subjective standard makes it so that only a jury can consider a writer’s motive with no guaranteed acquittal. It is possible that the subjective standard would have prevented Elonis from being convicted for threat to an FBI agent, but declaration of such threats by an objective standard would likely violate the First Amendment. For this reason, the Supreme Court said that it was not enough to convict Elonis based only on the idea that a reasonable person would interpret his communications as a “threat.” However, the legal standard of conviction is still unclear, raising questions about what constitutes a subjective intent to threaten. With the rise in social media expressions, this case raises questions about individual online safety, both as a contributor or a reader of posts.

At our law firm, we assist clients with issues related to online speech and constitutional parameters. You may contact us to speak to an attorney about how your social media use is affected by this decision.