The Justices of the US Supreme Court are considering possible legal standards of whether prosecutors should have to show a defendant intended to threaten someone; does the defendant at least have to know their comments would cause the target of their communications to feel threatened; or is it enough that a “reasonable person” would perceive an Internet posting as a threat. 

John Elwood, an attorney for Anthony Elonis, speaks to reporters outside the  Supreme Court    

John Elwood, an attorney for Anthony Elonis, speaks to reporters outside the
Supreme Court


Many of the people who are being prosecuted now are teenagers who are essentially shooting off their mouths or making sarcastic comments which wind up getting them thrown in jail. 

The Major Issue

A major issue was the 2011 conviction of Anthony Elonis for posting threats on Facebook against his estranged wife, law enforcement and local elementary schools. 

John Elwood, a lawyer for Mr. Elonis, said prosecutors should have to show that someone accused of making threats intended to put the listener in fear - merely being reckless with comments on Facebook or elsewhere shouldn’t be enough to make someone guilty. 

Justice Samuel Alito said the position “sounds like a road map for threatening someone and getting away with it.” 

Justice Elena Kagan said the governments proposed standard seemed to be that someone could be guilty if they should have known that their posts would cause someone to feel threatened.  She said that standard is too low—”That’s not the kind of standard that we typically use in the First Amendment.” 

The Elonis v. United States case deals with an area of First Amendment law known as “true threats.”  Objective people test the “true threats” by judging whether the threat made was actually intended to inflict harm.

Elonis’ argument before the court centers around the claim that the government must prove that he meant for his posts regarding his wife to be interpreted threateningly.  Prosecutors argue Elonis’ intentions make no difference if the posts were interpreted as a threat by Elonis’ wife and otherwise reasonable persons.  “A statute that proscribes speech without regard to the speaker's intended meaning runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed,” the ACLU and other groups said.  

The government argues that exempting speech from prosecution threatens to compromise a federal law protecting victims from threatening speech, and the Supreme Court has a decades-long history of ruling against cases seeking to safeguard threats under the First Amendment.

Threats Against Police in St. Louis

In St. Louis, MO however, a man has been charged with threatening to kill police on twitter.

Jason Valentine, 35, posted nearly a dozen tweets talking about killing police on New Years Eve, and blowing up the St. Louis Justice Center.  St. Louis Police Chief says, “These aren’t about people’s First Amendment rights.  You can have an opinion about a lot of things, but you can’t make threats towards individuals that cause them to be fearful or frightened.  That’s where the line is crossed,” said Chief Dotson.

Justice Ginsburg seems to sympathize with the defense argument, asking “How does one prove what’s in somebody else’s mind?”  The upcoming Supreme Court decision must provide guidance to social media users and law enforcement about the boundaries of online threats.

The key should not be the poster’s intent, but rather the effect of threatening posts on the receivers. Online threats are still threats.