The U.S. Supreme Court recently heard arguments in a case regarding the extent of Constitutional protection of speech on social media. In United States v. Elonis, Elonis wrote graphic lyrics on Facebook which involved killing his estranged wife, law enforcement, and school students. Elonis is the Supreme Court’s first freedom of speech case involving cyber speech.
The issue before the Court is whether “conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten” or whether “it is enough to show that a ‘reasonable person’ would regard the statement as threatening.” Basically, under this “threat” statute, does is matter whether Elonis intended to cause fear or whether a reasonable person would consider his postings a threat?
To get an understanding of the context of this case, the following excerpts provide a brief glimpse into the speech that Elonis posted on Facebook:
“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.“
“Little agent lady stood so close. Took all the strength I had not to turn the b–ch ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin’ from her jugular in the arms of her partner.”
“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class.”
(In order to avoid complications with school internet filters, this blog post avoids the more profanity-laced postings of Elonis and censors a word that was spelled out in his original posting.)
Elonis argued that, under the applicable statute, the government must prove that the speaker intended the speech to be threatening. His argument centered on the protections offered under the First Amendment. In making this argument, he tried to relate his speech to the speech of famous rap artists, who are typically provided First Amendment protections despite the fact that they often express violent and threatening messages. On the other side, the government argued that the standard under the statute should be a reasonable person standard, requiring only that a reasonable person would consider the speech to be threatening.
The questions from the Supreme Court justices addressed both sides of the issue during oral arguments. Some of their questions included the following:
Justice Ruth Bader Ginsburg asked Elonis’s attorney about how the government would prove whether a particular threat, “in the mind of the threatener[,] was genuine?”
Chief Justice John Roberts questioned the government’s attorney on its interpretation of a “reasonable person.” He used the example of teenagers making a threat while playing a video game and questioned He then expressed concerns over the reasonable person standard being applied consistently with the same speech.
Justice Elena Kagan took a middle ground proposing a “reckless standard,” meaning a prosecutor would need to show only that the speaker should have known there was a substantial probability that the speech would cause fear, even if the speaker did not intent to threaten the listener. This standard would provide more protections for speech than the “reasonable person” standard, but it would not require the government to determine the speaker’s subjective intent.
It will be several weeks or months before the Supreme Court issues its highly anticipated decision in this case. Despite the fact that this case focuses on the interpretation of a specific threat statute, it will give insight into the justice’s views on freedom of speech in the context of online speech. In the absence of any significant appellate case law governing Ohio schools, the Elonis decision will provide some guidance to schools as they determine how to address student cyber speech.
United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013), cert. granted, 134 S.Ct. 2819 (2014).