Constraints on Online Free Speech Involving Bullying and Threats

As of June 16, 2014, the Supreme Court has decided to examine a case that deals with the validity of online threats. The court agreed to consider the appeal of a man from Pennsylvania convicted of posting threats aimed towards his wife, law enforcement, and local elementary schools to Facebook.

Anthony Elonis took to his personal account after his wife obtained a protection-from-abuse order, writing “Fold up your PFA and put it in your pocket Is it thick enough to stop a bullet?” He continued by threatening to shoot local elementary schools and, after an FBI agent visited him, writing that they should bring an explosives expert with them next time as “little did y’all know, I was strapped wit’ a bomb.”

Mr. Elonis’ defense claimed that his posts were nothing but “ficticious” rap lyrics and a “therapeutic” way to deal with the stressors of his life. As such, he argued, they fell under constitutionally protected speech, rather than threats.

Nevertheless, in 2011 a federal jury convicted Mr. Elonis on four counts of “transmitting threatening communications in interstate commerce” and sentenced him to 44 months in prison.

The arena of online threats is a highly contested one in the lower courts as it is difficult to define which forms of statements constitute a criminal threat. While Mr. Elonis claims that a person should not be convicted unless there is proof that it was the speaker’s intent to express a threat, many courts and prosecutors state that conviction should hinge instead on the basis of what a reasonable person would deem to be a threat. This latter argument is dependent not on the defendant’s subjective state of mind, but rather on the collective judgment of the reasonable public.

It is likely that a decision in Elonis v. U.S. will be made by June 2015.

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