It is not uncommon for people to take advantage of the immediacy of the internet to issue threats to others, often anonymously but sometimes not. Prominent people routinely receive threats from the general public and this requires a judgment as to when to take them seriously and how best to respond. While vague threats from an anonymous person are troubling enough, concerns tend to rise when the threat comes from a known person who is in a position to actually carry out the action and has a motive for doing so. But what can one do in such a situation?

Whether a threat is credible enough to warrant law enforcement taking action against the person issuing it depends on whether the standard to be used is a so-called objective one (in which an average or reasonable person would consider it credible) or a subjective one (where one has a preponderance of evidence that the person actually intended to carry out the threat). Clearly the subjective standard is a much harder one to establish.

The US Supreme Court heard oral arguments a case Elonis v. United Stateson Monday that dealt with precisely this issue. It involved someone named Anthony Elonis who made threats on Facebook to his estranged wife. Amy Howe explains the background to that case.

Elonis’s legal troubles date back to 2010, when his wife left him, taking their two young children with her. He began to post lyrics from popular songs on Facebook, and he soon moved on to post his own, sometimes violent, rap lyrics. As part of his posts, Elonis included disclaimers about how his lyrics were merely fictitious, and that he was just “exercising his constitutional right to freedom of speech.” He also sometimes included links to the Wikipedia entry on the First Amendment and even the text of the First Amendment itself.

In the fall of 2010, Elonis’s Facebook posts included several that discussed harming his ex-wife. One post was a take-off on a comedy routine available on YouTube: Elonis asked his Facebook friends whether they knew that it was illegal for him to say that he wanted to kill his ex-wife, and he added that it would be “incredibly illegal” to suggest that someone could kill his ex-wife by firing a mortar launcher from the cornfield behind her house. A day later, Elonis put up a post about shooting a kindergarten class.

These posts earned Elonis a visit from an FBI agent. After the visit, he posted about that encounter too, suggesting in rap lyrics that he had strapped a bomb to his body and would have detonated it if he had been arrested. This post was apparently the last straw for the FBI: a few weeks later, Elonis was arrested and charged with violating 18 U.S.C. § 875(c), which makes it a crime to communicate threats in interstate commerce – for example, over the Internet.

Elonis claimed that the charges against him should be dismissed because you can only violate the law if you intend to threaten someone. And he didn’t have any plans to threaten his ex-wife, the FBI agent, or anyone else: his rap lyrics and “venting” about his problems on Facebook just made him feel better. But if he can be convicted without any intent to threaten anyone, he added, that would violate the First Amendment. A federal trial court rejected both of his arguments. Instead, it instructed the jury, it could find Elonis guilty if the average person, looking at a statement objectively, would believe that it was intended to be a threat. The jury convicted Elonis, and he was sentenced to nearly four years in prison.

What was argued before the court was what constitutes a true threat and whether it requires proving actual intent to do harm, which is the subjective standard. And does putting in disclaimers that you are merely writing rap lyrics or adding the words ‘just kidding’ after writing the threats, as Elonis did, let you off the hook?

In his briefs at the Supreme Court, Elonis argues that a “threat” by its very nature requires an intent to cause fear. Because the whole point of a crime, he says, is that the defendant meant to do something wrong, the Court has interpreted criminal laws as requiring a wrongful intent even when they did not explicitly do so.
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The federal government counters that, as the trial court in this case instructed the jury, courts should determine whether something is a “true threat” by looking at whether an average person would interpret the statement as reflecting a serious intent to harm someone. The government emphasizes that courts and juries can and should look at the context in which the alleged threat was made, and at the reactions of the people who heard the alleged threat, but they should not consider whether the defendant himself actually intended to threaten. This, the government explains, is because even if Elonis didn’t intend to threaten his ex-wife or the FBI agent, they were still afraid and their lives were still disrupted: the First Amendment doesn’t protect him even if he knew that he didn’t mean to threaten them.

Howe says that it was hard to read the sentiments of the court during the oral arguments. Lyle Denniston analyzed the oral arguments and how the court struggled with the gap between the objective and subjective standards.

The gaping distance between those two positions led the Court to explore intermediate possibilities — whether “purpose” should count, ” whether “knowledge” was enough, whether mere “recklessness” would suffice. If that were not challenging enough, the Court struggled to figure out, if they opted for a “reasonable person” to test the meaning of menacing words, exactly who that would be. Would it be necessary to use a teenager addicted to the Internet to judge a teenager who sent a message with threats included? Who would judge whether a rant was only a rap, as in rap music with violent lyrics?
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To decide the case, the Court does have to settle on a definition of proof, because the language of the federal law at issue seems — if applied literally — to say that any threat of harming someone else is criminal, but the Court has insisted that the law only applies to “true threats.” How to know, then, when a threat reaches the level of being true or real?

This is going to be a very difficult free speech case whose outcome, whatever it is, is going to be problematic. Restricting the right of people’s speech is not something to be taken lightly. And yet, allowing people to create real fear in others is also problematic. Elonis seems like a really awful piece of work, a jerk who seems to relish venting his anger because it made him feel better. He could have done so privately to a few friends. The fact that he used Facebook suggests that he derived his satisfaction mainly from knowing that it would cause fear in his ex-wife due to the uncertainty that it would create in her mind as to whether he intended to carry out the threat.

It is true that when it comes to music and other forms of art, threats of violence are common and are not prosecuted. It is not just in recent rap music either, as older readers will recall a problematic Beatles song Run for you life that explicitly warns a woman that she will be killed if she leaves for another man.

You can read the lyrics here. While I was a fan of the Beatles, I used to wonder what made them perform such a disturbing song. John Lennon wrote it but later said that it was his least favorite Beatles song and the one that he most regretted writing.

I don’t think anyone feared being killed by one of the Beatles, which is why it will be hard to say that why this song did not cross some threat line but Elonis’s lyrics did.