In United States v. Elonis, The Supreme Court Will Address the Complex Issue of Online Threats

Last September, I blogged about the Third Circuit case, United States v. Elonis, where the Third Circuit upheld Anthony Elonis' conviction under 18 U.S.C. § 875(c) making it a crime to "transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another." In that post, I suggested that it was unlikely that the Court would take up Elonis' case.

I was wrong. Today, the Supreme Court announced that it will hear the case.

The Wall Street Journal Law Blog reports on the Court's announcement and summarizes the details of Elonis' conduct:

After his wife obtained a protection-from-abuse order, defendant Anthony Elonis took to Facebook and wrote on his page, "Fold up your PFA and put it in your pocket Is it thick enough to stop a bullet?" 

In another post, Mr. Elonis wrote, "Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined." And after an FBI agent visited his residence, Mr. Elonis said that law-enforcement officers should bring an explosives expert on their next visit, "Cause little did y'all know, I was strapped wit' a bomb."

SCOTUSBlog's page on the case is available here, and it includes the text of the issue the Supreme Court will examine:

Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

While the requirement that a defendant simply hold a subjective intent to threaten somebody is accepted by most courts as sufficient for conviction under this statute, the cases that have most recently challenged the subjective approach involve statements made over the Internet. In Elonis, the defendant was convicted for statements made on his Facebook page. In another case, Jeffries v. United States, which I blogged about
here and here, the Sixth Circuit held that the defendant, Franklin Jeffries, violated the threat statute when he posted a video to Youtube where he sang about killing the judge overseeing his custody dispute. The Supreme Court rejected Jeffries' petition for certiorari last October.

I don't purport to be an expert reader of the tea leaves when it comes to predicting Supreme Court opinions, but I would not be surprised if the Supreme Court ruled that Elonis' conviction was proper and that the prosecution does not need to prove that he subjectively intended to threaten others. The Court's earlier dismissal of Jeffries, which raised an almost-identical question, suggests that the Court was not particularly disturbed by the Sixth Circuit's affirmation of the conviction and its dismissal of the claim that the prosecution needs to prove the defendant's subjective intent to threaten others.

Admittedly, this theory does not explain why the Court decided to take up the issue after the Elonis decision made the split in authority over the threats statute even more one-sided. But I still think that Elonis will face an uphill battle.

Beyond my attempts at prognostication, I want to highlight the interesting confluence of issues and arguments that this case involves. In support of Elonis are those who argue that the objective true threat standard is not well-suited for the online environment. At Slate, Dahlia Lithwick sums up this concern:

One of the confounding factors here is that the court hasn’t yet looked at the question of true threats through the lens of modern technology. Those urging the court to take the case argued that speeches at rallies and even cross burnings are fundamentally different from YouTube postings or tweets. Elonis claims that you can’t use an objective listener standard when you are dealing with the interpersonal and context-free conversation that takes place in the Wild West of social media. Elonis’ petition for Supreme Court review argues that “modern media allow personal reflections intended for a small audience (or no audience) to be viewed widely by people who are unfamiliar with the context in which the statements were made and thus who may interpret the statements much differently than the speakers intended.”

Also on Elonis' side are those who argue that the threat statute punishes those who write rap lyrics. They note that Elonis argues he was writing stanzas of rap lyrics on his Facebook page. Supporters of Elonis contend that rap lyrics are treated with too much suspicion in the prosecutorial context, arguing that rap lyrics, which often contain "posturing and hyperbole," are wrongly assumed to constitute true threats by judges and juries. Forbes has more discussion of this dimension of the case here.

While Elonis might argue that threats on the Internet should be treated differently, there are others who argue that threats in the online context are very real and truly harmful to those who are targeted. Amanda Hess details the constant harassment that women face online:

According to a 2005 report by the Pew Research Center, which has been tracking the online lives of Americans for more than a decade, women and men have been logging on in equal numbers since 2000, but the vilest communications are still disproportionately lobbed at women. We are more likely to report being stalked and harassed on the Internet—of the 3,787 people who reported harassing incidents from 2000 to 2012 to the volunteer organization Working to Halt Online Abuse, 72.5 percent were female. Sometimes, the abuse can get physical: A Pew survey reported that five percent of women who used the Internet said “something happened online” that led them into “physical danger.” And it starts young: Teenage girls are significantly more likely to be cyberbullied than boys. Just appearing as a woman online, it seems, can be enough to inspire abuse. In 2006, researchers from the University of Maryland set up a bunch of fake online accounts and then dispatched them into chat rooms. Accounts with feminine usernames incurred an average of 100 sexually explicit or threatening messages a day. Masculine names received 3.7.

Mary Anne Franks discusses the impacts of cyber harassment on women in law review articles here and here. Nancy Leong provides an impressive "Cyberharassment Bibliography" here, which contains links to numerous articles detailing the problem of sexist harassment on the Internet.

While Elonis may not subjectively think that he is causing any harm, his online posts may have a very real impact on those he targets. As the Third Circuit stated in upholding his conviction:

Limiting the definition of true threats to only those statements where the speaker subjectively intended to threaten would fail to protect individuals from “the fear of violence” and the “disruption that fear engenders,” because it would protect speech that a reasonable speaker would understand to be threatening.

Much of today's coverage of Elonis focuses on the fact that the Court has granted certiorari. And as the Court moves forward through the end of its term and releases many of its most anticipated decisions of the term, I suspect that the discussion of Elonis will be pushed to the background. But when the Court's fall term approaches, I suspect that Elonis will move into the spotlight as one of the Court's more notable cases of the term, and I look forward to the debates and discussion this case will inspire.