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Supreme Court to Hear Arguments in Facebook Threat Case

01-Dec-2014

"I'm so angry I could kill him." 

"I could just wring her neck."

Most people, given the appropriate context, would consider the above words empty hyperbole and would not take such frustrated utterances as evidence of malicious or homicidal threat. However, in today's society, when hit lists are found in school lockers and stalking and harassment end in brutal violence, we have to be cautious to treat each threat as real. But can we criminalize frustration? How do we determine whether an belligerent rant on Facebook is a serious threat or simple venting of frustration and anger?

There seems to be a fine line between caution and common sense:

  • A Maryland 7-year-old was suspended from school for chewing his Pop-Tart into the shape of a gun.
  • A 60-year-old gambler in an Ohio casino was charged with a felony after telling a dealer he was only there to get away from his ex-wife, whom he said had the Ebola virus.
  • An 18-year-old Texas teen engaged in a verbal spar on Facebook with a fellow gamer was jailed and held on $500,000 bond, charged with a felony, when someone in Canada saw his "sarcastic" comment that he was going to "shoot up a kindergarten" some two months following the Sandy Hook massacre.

Today, the United States Supreme Court will hear arguments in Elonis v. United States, in which a man was convicted of federal crimes for making threats on Facebook. The is asked to determine whether "conviction of threatening another person requires proof of the defendant’s subjective intent to threaten. . . whether it is enough to show that a 'reasonable person' would regard the statement as threatening."

In the case, Anthony D. Elonis was convicted of a federal crime under 18 U.S. Code § 875(c), which states, "Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both."

Elonis's wife of 7 years had just left him, and he soon lost his job. These events precipitated a series of "rap lyrics" Elonis posted on his Facebook profile, often using violent language and containing veiled threats against his ex-wife and former employer. Elonis's attorneys pointed out that the "victims" of the threats were not tagged in his posts, and that he had no real intent to injure anyone. Rather, his posts were cathartic ramblings using the often violent parlance of rap lyrics.

The lower courts have been split in the interpretation of whether a communicated threat must be accompanied by intent to harm or whether the reasonable perception of a threat is enough to bring a federal conviction. The petitioner argues that the First Amendment, Virginia v. Black, the Ninth Circuit Court of Appeals, and the Supreme Courts of Massachusetts, Rhode Island, and Vermont hold that the transmitted threat must be accompanied by intent in order to be criminal speech. However, several other federal appeals courts and state Supreme Courts have ruled that the "reasonable person" test is sufficient for conviction.

The United States Supreme Court will hear arguments today before forming a decision that will resolve the discrepancy in lower court rulings about social media threats.



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