Facebook Threats: Will Prosecutors Have to Prove Subjective Intent?

By Ana Choi

Today, the Supreme Court will hear oral arguments for Elonis v. United States, an important case dealing with freedom of speech in the context of social media. Petitioner Anthony Elonis was charged and convicted under 18 U.S.C. § 875(c)—which forbids “any threat to injure the person of another”—after composing a series of threatening Facebook posts about his wife, his co-workers, law enforcement officers, and even an unspecified elementary school. The question to be decided is whether conviction for making a threat requires proof of a subjective intent to threaten, or whether it is enough to show that a “reasonable person” would perceive the statement as threatening.

The 1969 case Watts v. United States firmly established that the First Amendment does not protect “true threats,” but the lack of further guidance following Watts resulted in a split amongst lower courts regarding the proper standard to apply—subjective or objective. The Supreme Court finally addressed this issue in the 2003 case Virginia v. Black, but the circuit split still persists because different circuits have interpreted the Black decision in different ways.

In an age where social media platforms such as Facebook are becoming a dominant channel of communication, the question of what counts as a “true threat” takes on new relevance, complexity, and urgency. Because Facebook is so easily accessible and provides instantaneous transmission of messages, there is much less deliberation involved in the process of forming a thought and delivering it to others. The casualness of Facebook interaction would seem to suggest that it is advisable to require proof of a subjective intent to threaten; otherwise, every thoughtless and immature teenager could be held liable.

On the other hand, however, the public and sharing-oriented nature of Facebook enables new and creative ways to threaten individuals. Since Facebook allows users to post messages without having to address specific individuals, people can post threatening messages that are disguised as artistic expression or emotional venting. In his brief to the Supreme Court, Elonis’s Facebook posts are described as “therapeutic efforts to address traumatic events.” The potential for this kind of post hoc justification suggests that an objective standard would be more appropriate, since it would avoid the seemingly impossible task of proving that a threatening Facebook post was indeed meant to be a threat, rather than a stress-relieving rant.

Of course, the Supreme Court will not be deciding the subjective versus objective question solely based on the specific context of this case; it will be dealing with the general standard to be applied to all threats in all situations. However, it will be interesting to see if—and to what extent—the Court engages with the particular challenges that arise from the Internet and social media.

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