Facebook Threats Case to Get Supreme Court Review

Facebook Threats Case to Get Supreme Court Review Vinson & Elkins's John Elwood

The U.S. Supreme Court will soon be grappling with classic First Amendment principles in the modern-day social-media context of a case involving threatening posts on Facebook.

The justices agreed to examine the constitutionality of a federal law making it a crime to transmit communications containing “any threat to injure the person of another.”

Pennsylvania resident Anthony Elonis brought the suit after being convicted under the law for Facebook postings in 2010 that used violent, profane and threatening language in rants against his estranged wife, former co-workers, law enforcement officials and an unspecified kindergarten class.

In one statement, Elonis appeared aware that he was close to violating the law when he said in a mocking tone, “Did you know that it’s illegal for me to say I want to kill my wife?” He added, “I’m letting you know so that you don’t [sic] accidently go out and say something like that.”

The high court has ruled that the First Amendment does not protect “true threats,” but lower courts are deeply divided over how to define that term. They have split over whether the speaker must be shown to actually intend the threat, or whether it is enough to show that a “reasonable person” receiving the communication would view it as a threat.

But the relevant precedents largely predate the development of social media, rap music and a culture of “anything goes” expression online—expressions that some readers or listeners shrug off and others, including those who were not the intended recipients, view with alarm.

“People speak a whole new language on social media. They talk about things in a way that is foreign to many of us,” said J. Joshua Wheeler of the Thomas Jefferson Center for the Protection of Free Expression. “But it doesn’t necessarily mean they intend to do harm.”

The Jefferson center filed a brief in Elonis urging the justices to take up the case in part to consider whether the context of threatening speech matters. “Individuals increasingly face prosecution for alleged threats conveyed on new media, including Facebook, YouTube, and Twitter,” the brief asserts.

Although the case, which will be argued next term, could turn into a major constitutional pronouncement, the justices gave themselves an alternate path as well. The court’s order granting review instructed the parties to brief and argue an additional issue: “Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. 875(c) requires proof of the defendant’s subjective intent to threaten.”

That question could lead the court to decide the case by interpreting the meaning of the law, rather than on constitutional grounds. The court sometimes invokes the doctrine of “constitutional avoidance” to stay away from constitutional pronouncements when other grounds can be used to decide a case.

John Elwood of Vinson & Elkins, the lawyer for Elonis, urges the court to require proof of “subjective intent” on Elonis’ part—evidence that he actually intended to threaten people who read his posts.

Elwood asserts that the high court’s 2003 ruling in Virginia v. Black required the “subjective intent” standard when it defined prohibited “true threats” as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.”

The U.S. Court of Appeals for the Ninth Circuit and several state courts have adopted that subjective standard. But the Third Circuit, which upheld Elonis’ conviction, used an objective standard based on how a “reasonable person” would interpret the statements. All the rest of the regional circuits also use some form of an objective test.

In eight states, Elwood pointed out, state and federal court rulings are in conflict, “subjecting speakers to uncertainty about the legal standard that applies to their statements.”

Solicitor General Donald Verrilli Jr. urged the court not to review the case, asserting that the lower courts in Elonis’ case were correct in adopting an objective test.

“A statement that a reasonable person would regard as a true threat creates … fear and disruption, regardless of whether the speaker subjectively intended the statement to be innocuous,” Verrilli wrote.

Contact Tony Mauro at tmauro@alm.com.

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