Online Threats Versus The First Amendment

When do threats posted on the Internet become criminal acts? Does it depend on the writer's intent or the effect the words would have on a reasonable person?

By , Attorney · Seattle University School of Law

Question: Can a person ever be convicted of a crime for posting threatening words on the Internet, even ones that are part of a rap lyric? Doesn't the First Amendment protect expressions like this?

Answer: Where the prosecution has not proven that a rapper intended his lyrics as a threat or knew they would be perceived that way, he cannot be convicted. Or, to put it another way, without a guilty mind, there is no crime.

For a general discussion of rap lyrics as evidence in criminal cases, see Rap Lyrics in Evidence: Is It a Crime to Rhyme?

The Elonis Case

The U.S. Supreme Court heard the appeal by Anthony Elonis of a four-year prison sentence he received after being convicted of the federal felony crime of communicating threats over "interstate" communications devices (in this case, the Internet).

After his wife left him, Elonis posted violent material against her on his Facebook page. In some of the posts, Elonis wrote about his desire to murder his ex-wife and engage in other physical violence against her and others, including an FBI agent who came to his house. During Elonis's trial, his attorneys argued that he never intended to carry out the threats but was just "venting" his frustration and depression in the form of rap lyrics. At the trial, Elonis's ex-wife testified that she feared for her life after learning of the posts.

The trial court instructed the jury that Elonis could be found guilty if a reasonable (or objective) person would have found his postings threatening (see below for more about objective standards).

Elonis appealed his conviction to the Third Circuit U.S. Court of Appeal, arguing that his conviction should be overturned because the prosecutors offered no evidence that he had the actual intent to carry out the threats. That is, Elonis's attorneys argued that a subjective standard (see below) should have been applied when the judge instructed the jury.

The Third Circuit rejected Elonis's arguments and found that the objective standard supplied by the trial court was correct. Elonis appealed to the Supreme Court and, on June 1, 2015, the Court issued its decision in Elonis v. United States.

More About the Federal Crime

The jury convicted Elonis of a federal felony crime, 18 U.S.C. § 875, which makes it a crime to transmit a threatening message over a communications device, including a computer. Under that law, anyone who transmits an "interstate communication" that contains a threat to injure another person can be imprisoned for up to five years if convicted. Basically, when a person uses a telephone or the Internet, he is transmitting an interstate communication as that term is defined by federal law.

Objective vs. Subjective Standard

The "reasonable person" standard adopted by the trial court and the Third Circuit in Elonis is an objective standard because it views a defendant's conduct from the perspective of a reasonable outside observer. This means that a defendant should not be convicted of a crime because a highly sensitive observer would have felt threatened, but it also means that the defendant's evidence about his actual intent is not the determining factor and can be disregarded by the jury.

A subjective standard, in this case, views a defendant's conduct from his own perspective, so the jury can decide whether he really meant to carry out his threats. Under this standard, Elonis's evidence that he was venting and writing rap lyrics, along with the lack of evidence of intent to carry out the threats, would be considered by the jury.

Prosecutors and the Obama administration contended that an objective standard was essential to address threats. Elonis's team, as well as First Amendment and other civil rights advocates, argued that the true nature of a written threat required evidence of the author's actual, subjective intent.

First Amendment

"True" threats of harm are not protected speech under the First Amendment. But, the reason the Supreme Court decided to hear Elonis is that the definition of "true" threats is not so simple. The Court has ruled in previous cases that even "sharp" political or other emotionally charged speech is protected. So, the question before the Court inElonis was, which standard—objective or subjective—is more likely to determine what behavior or words constitute "true" threats. In other words, is a jury more likely to correctly discern a true threat if it views a defendant's words through the eyes of a reasonable person, or must the jury view the words through the defendant's own eyes?

Rhyme or Crime?

One of the "lyrics" that Elonis posted about his ex-wife actually toyed with the notion of speech versus action:

Did you know that it's illegal for me to say I want to kill my wife?

It's illegal.

It's indirect criminal contempt.

It's one of the only sentences that I'm not allowed to say.

Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife.

His ex-wife said these words terrified her. Elonis's lawyers argued that they were clearly a joke, which he had borrowed almost verbatim from the routine of a stand-up comedian. And, Justice Roberts, writing the majority opinion for the Supreme Court, quoted this post at length.

The Supreme Court Ruling

The Supreme Court's decision rested on a basic principle of criminal law: An essential element of every crime is the state of mind of the accused. Sometimes referred to as criminal intent or "scienter," this element is designed to prevent the government from convicting an individual of a crime when the individual did not intend to commit a crime. For example, if I pull out of a parking space unaware that a homeless person has curled up to sleep underneath my car, I cannot be convicted of murder because I did not intend to kill anyone. Negligence is usually not viewed as criminal intent sufficient to support a conviction.

In the Elonis decision, Justice Roberts equated the objective, reasonable person standard applied by the trial court and the Third Circuit to a negligence standard. Justice Roberts and the majority ruled that the proper standard to apply to Elonis's messages was the subjective one. That is, the prosecutor had to prove (and the jury had to find) that Elonis was actually aware and intended that his words would be viewed as a threat. As Justice Roberts put it, "what Elonis thinks does matter." Otherwise, in the words of the majority opinion, a defendant charged with making a threat could be convicted without the jury even considering his own mental state so long as the hypothetical "reasonable person" standard was met. And, as noted above, the defendant's mental state in any criminal case is an essential element.

The Supreme Court overturned Elonis's conviction.

More Issues

One of the side issues raised in the Elonis case was whether the "impersonal" nature of electronic communications like social network posts, email, and texts justifies a subjective standard because different people view the same words differently when they read them online or on screen. This is because there are no vocal inflections, facial expressions, or even narrative context (such as we get in a longer article or book) from which a reader can glean the author's intended meaning, and this can lead to misinterpretations. For example, when we text, "Sure" in response to a friend's request, some people receiving that response would take it as a hearty affirmative while others would view it as a sarcastic rejection. Justice Roberts alluded to this concern and to the possibility that a "reckless" intent standard may be appropriate in some cases, but noted that this potential standard was not before the Court in the Elonis case. This means that the Court may face a case raising the recklessness standard directly in the not-too-distant future.

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