A smartphone user logs into his Facebook account in Rio de Janeiro on April 15, 2013.
Ricardo Moraes / Reuters

Do threats on Facebook count?

Updated

Editor’s note: This post contains coarse language.

Sharing your feelings on Facebook has become a norm – but prosecutors said one man’s posts crossed the line, and now the Supreme Court is stepping in.

The high court on Monday agreed to examine the line between free speech and threatening violence with the case of Anthony Elonis, a Pennsylvania man convicted in 2010 for making threatening communications in a series of gruesome statements he posted publicly on Facebook. 

Elonis’s statements – styled as rap lyrics he likened to rapper Eminem’s – included killing his ex-wife, shooting up a kindergarten, blowing up the local sheriff’s office, and attacking a waterpark he had just been fired from for allegedly threatening and sexually harassing a woman colleague, according to court documents. After a visit from the FBI, who had been alerted to the messages by his ex-wife, Tara Elonis, Anthony Elonis posted lyrics fantasizing about killing a woman FBI agent who had visited his home. The case could have widespread implications for free speech rights and public safety – women are subject to a disproportionate amount of harassment on the Internet. 

Elonis has defended himself by arguing his statements were not intended as threats, but were protected speech under the First Amendment. Elonis argues that what constitutes a criminal threat depend on whether or not the statement was intended as such by the speaker.

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The courts have held that the First Amendment does not protect “true threats” of violence. The question is what constitutes a “true threat”: whether it must be proven that a statement was intended as a threat to count as one, or whether a conviction can rely on whether a “reasonable speaker” would interpret a statement as conveying the intent to hurt someone. The dispute rests on the interpretation of a 2003 Supreme Court case, Virginia v. Black, which held that cross burning could be protected speech rather than a threat depending on the context.

Elonis claimed that his statements were similar to songs by rapper Eminem, who has written lyrics about choking his ex-wife and explaining to his daughter his intent to toss her mother’s corpse in a lake. The brief filed by attorneys from the University of Virginia on Elonis’s behalf extensively cites Eminem’s work. Here’s one of Elonis’s initial messages, according to court documents:

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. Hurry up and die, bitch,
so I can bust this nut all over your corpse from
atop your shallow grave. I used to be a nice guy
but then you became a slut. Guess it’s not your
fault you liked your daddy raped you.
So hurry up and die, bitch, so I can forgive you.

Tara Elonis testified at trial in 2011 that “I felt like I was being stalked. I felt extremely afraid for mine and my children’s and my families’ lives.”

Shortly after Tara Elonis acquired a “Protection from Abuse” order based on Anthony Elonis’s online statements, Anthony Elonis posted more messages contemplating their own legality. Here’s part of one of Elonis’s messages, according to court documents, which is based on a sketch from the comedy group, The Whitest Kids U’Know:

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.
I’m not actually saying it.
I’m just letting you know that it’s illegal for me to say that.
It’s kind of like a public service.
Anthony Elonis posted another statement after the Protection from Abuse order was issued saying: 
Fold up your PFA and put in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true
threat jurisprudence
The U.S. Court of Appeals for the Third Circuit upheld Elonis’s conviction, based on the the standard that a “reasonable speaker” would “foresee the statement[s] would be interpreted as a threat.” The Supreme Court will now decide whether or not it was right to do so.

Federal Courts and Supreme Court

Do threats on Facebook count?

Updated