For the first time, the Nation’s highest court entertained oral arguments Monday on the issue of whether threatening comments posted on Facebook constitute criminal behavior or whether such comments are protected as Facebook free speech by the First Amendment of the United States Federal Constitution. (See SCOTUSBlog Coverage here.) (See Oral Argument Transcript here.) (See Indiana Lawyer article here.)
The key issue in Elonis v. United States is whether, in order to prosecute crimes for threats against a person pursuant to 18 U.S.C. § 875(c), the government must prove that such threats were communicated “with the actual intent to cause fear” or whether such threats must “instill fear in a reasonable person”.
In the case below, Anthony Elonis, aka, “Tone Dougie”, was an aspiring rap artist and recently divorced his wife. On his Facebook free speech page, he made the following remark, allegedly as rap lyrics:
“There’s 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.”
In another post, Elonis wrote:
“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.”
The government’s position is that any threat communicated that would instill fear in a reasonable person is a crime pursuant to 18 U.S.C. 875(c) due to public safety concerns. The government reasoned that if a particular threat instills fear, it could result in a response, or necessitate a response by schools or other organizations, and should be punished as a deterrent. The government argues that such speech has a de minimus value and that any value of such Facebook free speech is outweighed by the public safety concerns.
Elonis, on the other hand, by his Attorney argued that the comments constitute valuable Facebook free speech. He even compared such words to those of Thomas Jefferson, “The Tree of Liberty must be refreshed…with the blood…of tyrants.” Elonis argued that any attempt at criminalizing such behavior would chill such Facebook free speech, and that the First Amendment should protect against prosecution. He argued that the protections afforded under the First Amendment should be heightened, here, because the words were contained in Mr. Elonis’ rap lyrics, “art” as Elonis’ legal counsel eloquently argued in his Brief to the United States Supreme Court.
Without much reflection, this question seems easy for any legal scholar. However, beneath the surface lies a key distinction; namely, the difference between posting such words on a ‘public’ forum and communicating them directly to a potential victim. The true difference is between active and passive communication. I think there are certainly legitimate concerns from both sides. On one hand, a person shouldn’t be able to find a legal loophole to make threats to his ex wife after the fact. He shouldn’t escape criminal liability simply because of a mere technicality. However, to not hold the government to a standard in which requires intent leaves open the possibility that a person could face criminal liability for mere recklessness or even simple negligence. To do so, in my opinion, would significantly chill a significant amount of valuable Facebook free speech in order to protect from the few reckless or negligent ‘threats’ that may warrant being prosecuted. Our Forefathers felt that free speech was so sacred that even the most undesirable words were protected from the reach of government, except those resulting in immediate, irreparable harm. Thought the content of the Facebook free speech here is undesirable or distasteful to say the least, making it into a crime should require a subjective intent on the part of the speaker.