Is a Facebook death threat a true threat? Supreme Court to decide

Filed Under: Facebook, Featured, Law & order

Image of gun and computer courtesy of ShutterstockIn 2010, the wife of a US man from Pennsylvania, Anthony D. Elonis, took their two kids and left him.

Elonis began making threatening Facebook posts, including a comment on his sister-in-law's post about taking her niece and nephew (Elonis's son) trick-or-treating:

Tell [my son] he should dress up as matricide for Halloween. I don’t know what his costume would entail though. Maybe [my ex-wife's] head on a stick?

Plenty of vengeful, gory Facebook rants followed, including a description of how he wouldn't rest until his wife's body was "a mess, soaked in blood and dying from all the little cuts".

His wife was granted a restraining order against Elonis.

Then, he posted this:

Fold up your [Protection From Abuse order] and put it 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
And prison time will add zeroes to my settlement
Which you won’t see a lick
Because you suck dog d*** in front of children

****

And if worse comes to worse
I've got enough explosives
to take care of the state police and the sheriff's department

Death threats? Or rap lyrics protected under the First Amendment as free speech, as Elonis claimed in his defense?

The Supreme Court announced on Monday that it will re-examine the case in its upcoming October session, giving us a federal decision on whether threats made online need to be made with real intent, or whether they just have to be taken seriously by a reasonable person who's threatened.

In a December 2010 trial, a federal appeals court had rejected Elonis's claim that his comments were made only because he was depressed, that he never meant to carry out the threats, and that the online posts were made in the form of rap lyrics as a way of venting his frustration after his wife left him.

Elonis has never used explosives on the state police, the sheriff's department, or any SWAT team that might have been sent to his house, but he has spent the past 3.5 years in jail for threatening to do so online.

In fact, he's now serving a 44-month prison term for making death threats not only against his wife but also his former amusement park coworkers and its patrons, police and a kindergarten class. He also wrote on Facebook that he would slit the throat of an FBI agent, adding that he was strapped with explosives.

SWAT threat Elonis screenshot

So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus' waitin' for y'all to handcuff me and pat me down
Touch the detonator in my pocket and we're all goin'
[BOOM!]

The Supreme Court said it will consider whether conviction of threatening another person under federal law "requires proof of the defendant's subjective intent to threaten" - as in, did Elonis mean the messages to be understood as threats?

Elonis's lawyers say that a subjective standard is appropriate given the impersonal nature of communication over the internet, which can lead people to misinterpret messages.

His lawyers argue that comments intended for a smaller audience can be viewed by others unfamiliar with the context, who can interpret the statements differently than was intended.

His wife testified that she was objectively terrified by the posts, especially since they increased after she filed the restraining order against him.

She testified in court that the threats felt very real, that Elonis had rarely listened to rap music during their seven years of marriage, and that she'd never seen him write rap lyrics.

I felt like I was being stalked. I felt extremely afraid for mine and my children’s and my families' lives.

For more than 40 years, the Supreme Court has held that "true threats" to harm another person are not protected under the First Amendment.

But the court has also cautioned that laws prohibiting threats mustn't infringe on constitutionally protected speech, which includes "political hyperbole" or "unpleasantly sharp attacks" that fall short of true threats.

The Supreme Court's decision to take up the issue of what constitutes a real online threat comes in the midst of recent rampages that have been presaged by ominous online postings.

One such is the case of Elliot Rodger, the 22-year-old who stabbed his roommates to death and shot University of Santa Barbara students before killing himself last month.

Rodger had left threatening messages on YouTube and online forums.

His parents were so alarmed at the videos that they called police. Police who went to his house never viewed the videos, however.

Another case is that of Jerad and Amanda Miller, a married couple who recently killed three people in Las Vegas, including two police officers, before killing themselves.

Jerad Miller posted this ominous message on his Facebook page before the killings:

The dawn of a new day. May all of our coming sacrifices be worth it.

According to police, the Millers had expressed support on social media sites for renegade Nevada rancher Cliven Bundy, and the husband claimed to have been present at the standoff between federal agents and militia members at Bundy's ranch in April.

Hanni Fakhoury, a lawyer at the Electronic Frontier Foundation, says that there's a lot of fear right now about online threats such as these, but that the Second Amendment - which concerns the right to bear arms - seems to have been elevated above the First Amendment and its protection of free speech.

Fakhoury told Forbes that threats made online should be where police investigations - not prosecutions - start:

We've tolerated stupid speech a long time in this country, and we shouldn't let the internet shake that balance. We need a holistic approach to problems, not just, 'If you say a threat on the internet, you're going to jail.'

Fakhoury believes that convictions should only result if there's proof that the person making the threat intends to act on it - not when, for example, somebody's just drunk, venting, and threatening to shoot President Obama in a Yahoo Finance forum comment, as was the case last year when the Ninth Circuit court overturned US vs. Bagdasarian:

He was drunk and venting. The Ninth Circuit said his subjective mind frame mattered, and prosecutors couldn’t prove he meant it. We like that rule.

It should matter whether you mean it or not. In the Internet age, it's even more important because it's so easy to say stupid stuff online. We don't want to lose our right to free speech.

It is very easy to stay stupid stuff online, indeed. Unfortunately, it's very hard to tell if somebody's joking, depressed, venting, or has real, serious intent to do harm.

This is an important question for the Supreme Court to decide.

Social media makes it all too easy to throw something up online, have it taken out of context and then used against us in a court of law.

Our right to stay stupid stuff online should be protected by the First Amendment.

But let's all assume that our stupid stuff can be taken out of context and that such misinterpretation well may trigger police investigation.

In fact, let's pray that it does.

Better to force the posters of stupid things to convincingly explain the context, rather than to have police miss an online threat that was made with every intention of carrying it out.

Image of gun and computer courtesy of Shutterstock.

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15 Responses to Is a Facebook death threat a true threat? Supreme Court to decide

  1. John · 35 days ago

    It wasn't just one threat, it was a repeated campaign. If he'd actually carried out these threats you'd be asking "why didn't someone pick up on this earlier?"

  2. Scott · 35 days ago

    The title should say "Social Media" threat, why exclusive to Facebook ?

  3. David · 35 days ago

    If he had stood on a street corner with a megaphone, making those same threats at *that* anonymous crowd, how long before the police would have him packed up and in holding for making "terroristic threats"? His speech is just as free there as on the web; but you still cannot cause other people harm (or reasonable expectation of harm) thereby. "Yelling 'FIRE' in a theater" anybody?

    • Jim · 32 days ago

      I agree: The medium used to make the threats shouldn't matter.

      (Except that in person you can hear the inflections and see tonal and body language. So, the standard for written communication should be slightly higher than verbal.)

  4. The correct action is to harden your defenses. Get a gun, get a dog, and ask your family to be around and help. Anyone anytime can do something crazy whether or not they are posting threatening lyrics. Maybe the guy is venting and cooling off. Maybe the guy that doesn't vent and cool off is the guy that one night does get an ax and crash down the door and kill her. Don't go down this precrime path where people get locked up for years for saying something. It should be saying something plus action that is punishable, not just saying something.

    • AP · 35 days ago

      This is getting close to victim blaming. Who would you blame if she *didn't* go into maximum paranoia mode and then was murdered. Would you still be saying "clearly she needed a dog and a gun and this wouldn't have happened."?
      The signs are all there. Someone needs to stop him. That isn't her job. That's the job of law enforcement.
      I don't think he needs jail time. That would only amplify his hatred. What he needs is therapy and social services. Too bad that won't happen here in the US.

    • Adrian · 34 days ago

      Your right (in part) - anyone can do something crazy at any time - by car, by gun, be just about any other means. However I **strongly** disagree with you in regards to arming yourself as a solution - getting a gun just gives more people access to them, so when "you or they" go crazy they do a high impact. Getting a dog (by that you can only be meaning an aggressive breed, as I am pretty sure a Pug isn't going to do much) is just asking for more incidents of children, adults and other pets (no, I don't mean children and adults are the 'other' pets) being mauled by carelessly controlled dogs.

      Threats made need to be assessed - be they online, written text or verbal. Often than not when repeated threats of harm are made they tend to fuel the fire and are used by a person to work themselves up to a level of action (based upon experience with Policing). Using your comment on Venting - sure vent, but use curse words and what-not - blowing off steam should not be based around saying that you plan to 'rip their heads off and do something with the neck stump'.

      More alarming is the increasing trend of using social media as your platform of declaring your action just before you do it - how do you define what is a threat against someone (ie I am going to get you (and your little dog too)) verse what is a announcement of action (ie I am going to get you (right now))?

  5. Andy · 35 days ago

    His threats were specific as to the action he would take and the person he'd take action against. If this isn't a 9-0 decision to uphold, I'll be shocked.

  6. If somebody threatens to shoot up a school or makes a bomb threat, they are arrested, sometimes within minutes. But I guess making a terroristic threat toward just one person isn't serious enough, and won't get the high ratings the other threats will in the media. If you take just ONE threat seriously enough to arrest someone, then you must take them ALL that seriously. This is not one of those situations where you get to pick and choose. If the death threats aren't taken seriously, then neither can the shooting or bomb threats. Get on one side of the fence and stay there.

  7. RF · 34 days ago

    "Better to force the posters of stupid things to convincingly explain the context, rather than to have police miss an online threat that was made with every intention of carrying it out."

    Well said.

  8. Ross · 34 days ago

    How about we think about the victims of the threats, I like in Australia where it is How the threat is taken by the recipient of the threat. We will have a heap of terrorised victims, with the threat makers getting away without issue. What about the law also attempting to be a deterrent and putting an end to threats.

    • Jim · 32 days ago

      I don't think we can go this far. In situations like this, both sides are likely angry at each other. So, the victim's attitude shouldn't be the main determiner.

      However, it should definitely be taken into account. In a marriage, one could easily understand threats better than any objective standard could.

  9. Banquo · 34 days ago

    I just have to say; "The dawn of a new day. May all of our coming sacrifices be worth it." could mean anything. Once it gets to the point where saying something of that nature is cause for suspicion, then you won't be able to say very much of anything online.

  10. Bill · 34 days ago

    "...Fakhoury believes that convictions should only result if there's proof that the person making the threat intends to act on it..."

    All too often the "proof" someone intends to act on the threat is when they actually act on the threat and someone else ends up dead. If the threat is such that a reasonable person would take it seriously or feel threatened that should be the test. It makes no difference where the threat is uttered.

  11. 4caster · 33 days ago

    It is most irresponsible to make threats like this, even if intended to be a puerile joke. The police should always initiate a prosecution, even if only for wasting police time, for which the "joker" should be required to pay.

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About the author

I've been writing about technology, careers, science and health since 1995. I rose to the lofty heights of Executive Editor for eWEEK, popped out with the 2008 crash, joined the freelancer economy, and am still writing for my beloved peeps at places like Sophos's Naked Security, CIO Mag, ComputerWorld, PC Mag, IT Expert Voice, Software Quality Connection, Time, and the US and British editions of HP's Input/Output. I respond to cash and spicy sites, so don't be shy.