Facebook, Threats, and Free Speech


A man named Anthony Elonis angrily posts the following on his own Facebook page:

Fold up you PFA and put it in your pocket

Is it thick enough to stop a bullet?

He is arrested, charged with, and convicted of threatening his estranged wife. At the time he posted those words on Facebook, his estranged wife had just gotten a Protection from Abuse (“PFA”) Order against him in court.

Anthony Elonis’ case is now on appeal to the U.S. Supreme Court, and the Court is set to hear arguments on the case. The central issue is whether or not Elonis broke the law in posting those words on Facebook, or if he was just blowing off steam.

What is a threat?

Here’s the thing about threats — they exist in the eye of the beholder. In other words, in order for Elonis to be guilty of making a threat is it enough that a reasonable person would feel threatened by his words? Or, as his supporters argue, should the courts require proof of subjective intent — whether or not he actually meant the statement as a threat?

The law in question is 18 U.S.C. § 875(c):

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.

The real issue here is not whether this law is unconstitutional under the First Amendment — only how the law should be enforced. Anthony Elonis’ attorneys argue that his conviction should be overturned, because there was insufficient evidence presented that he intended the statement as an actual threat.

Subjective versus objective intent:

Fighting on the side of Elonis are the Electronic Freedom Foundation, and several other organizations. Their position is that the intent of the person posting the message is what really matters. If the person posting meant the message as a threat, then they broke the law. If not, then they didn’t break the law.

On the side of the prosecution are groups such as the National Network to End Domestic Violence. They argue that social media gives domestic abusers instant access to their victims, and such messages should be judged on whether or not the “victim” finds them threatening.

To keep from chilling free speech and potentially turning jokes into crimes, the Court should find that the defendant’s subjective intent is what really matters. Either way this case is decided, it will have big implications for free speech on social media.