In United States v. Elonis, No. 13-983, the U.S. Supreme Court will attempt to define when comments made on social media platforms cross the line from protected free speech to criminal activity. The case arose in our own Eastern District of Pennsylvania. Anthony Elonis posted violent rap lyrics and graphic messages on Facebook about his estranged wife, co-workers and an FBI agent. The communications were objectively threatening, but the relevant question is whether that speech is protected if the government cannot prove that the speaker intended to act on the threat.
Federal law criminalizes the transmission in interstate commerce of communications containing “any threat to injure the person of another.” This statute, interpreted in conjunction with the First Amendment, prohibits communications that are “true threats” but does not ban political speech, caustic remarks, or verbal attacks. The Supreme Court first articulated this “true threats” exception to constitutionally protected speech in Watts v. United States, 394 U.S. 705 (1969), where it reversed a criminal conviction arising from threats made against the president during a Vietnam War rally because the statements were “political hyperbole.” Thirty years later, in Virginia v. Black, 538 U.S. 343 (2003), the court defined a “true threat” as a statement made with the intention to communicate a threat.
