What happens when you post a threatening status on ‘the book of faces’ AKA Facebook? What happens if you write on your friend’s wall that you are going to kill him? Would the result differ if you added a friendly emoticon at the end of the sentence? Are you a criminal? Or are you protected by free speech and The First Amendment?

This is discussed in Elonis v. United States. A case in which a thirty-one-year-old man was convicted in 2011 for a series of threatening Facebook posts against his ex-wife, a fellow employee, and the FBI. The significance of this case is enormous, as it could potentially change the way the law deals with online threats and recalibrate the power of the First Amendment regarding the internet.

Do we need a subjective intent to threaten? Or is it enough to show that a “reasonable person” would regard the statement as threatening? When is speech on social media protected by The First Amendment, and when will you be convicted and shipped off to jail? There’s a fine line between the two.

The facts

In 2010, Elonis’ wife decided to leave him, taking their two young children with her. Things immediately took a turn for the worse, when soon after, Elonis also lost his job after a female employee filed a series of sexual harassment reports against him.

After those reports were filed and Elonis was sent home, he decided that the best thing he could possibly do, considering the circumstances, was to post on Facebook a picture of himself with the said employee at a Halloween event. The photo showed him holding a knife to her neck and he added then following in the description “I wish.”

Afterwards, Elonis decided to divert his worthy Facebook posts towards his ex-wife. He lovingly wrote the following about this wife: “If I only knew then what I know now… I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.” Elonis was alwys quick to wave The First Amendment flag, stating that he was exercising his constitutional right to freedom of speech.

One thing led to another and eventually Elonis successfully got the attention of the FBI. Of course he thought that the best possible thing he could do would be best to insult and threaten them as well.

Things progressed, Elonis was sent to prison and the case made it to the United States Supreme court.

What did Elonis have to say for himself in court?

Elonis’ main defence was that he wasn’t in any way serious and was merely unleashing his discomfort and frustration online, on Facebook. He claimed that seeing his rants as a crime would essentially turn The First Amendment on it’s head and rewrite the status quo regarding freedom of speech. Chief Justice Roberts elaborated on this claim and stated that:

It shows that he was going to do something dangerous. It’s a good thing that he had this outlet of the internet so he didn’t have to do it.

What did the Department of Justice have to say?

The Department of Justice, states that the circumstances and the context are the crucial factors. Elonis’ true subjective intentions are irrelevant. What matters is whether his words caused fear in hearts and minds of the people he targeted, and whether objectively, a “reasonable person” would understand the statement as a threat. The prosecution argues that Elonis’ words were in fact a “true threat” and therefore The First Amendment won’t be able to bail him out.

Why is this huge?

Considering that Facebook was founded way back in 2004, it’s surprising that only now, 10 years later, this issue has made it to the United States Supreme Court. This case is likely to set a precedent that is relevant for each and every person with internet access. How will the law distinguish between what is protected by The First Amendment and what isn’t. With trash talk about politicians and celebrities on their official Facebook pages becoming the norm, this is a big deal. Research shows that 24% of adult American Internet users have been exposed to some form of online threats. Does this mean that the reaming 76% of adult American internet users spend their days writing those threats?

If the court sides with Elonis, they are essentially giving the green light for such harassment. If they rule against Elonis, there is going to be real uncertainty as to what is protected under The First Ammendment and what is not.

What does this mean for us?

The Supreme Court is yet to issue a final verdict. It’s hard to predict which way this case is going to go, as the Justices have a real lack of understanding when it comes to new technologies and Internet issues. This sometimes leads to absurd rulings – see the Riley v California case on cell phone searches.

The real question is what is a true threat? Justice Kennedy said:

I’m not sure that the Court did either the law or the English language much of a good service when it said “true threat.” It could mean so many things. It could mean that you really intend to carry it out, A; you really intend to intimidate the person; or that no one could possibly believe it.

Another question that needs to be answered is, what happens if a threat is aimed at person A, who doesn’t find the text threatening but a third party (person B) sees the text as a threat ? For example, there is a pending case involving a couple of Texas teenagers who were in a video game chat room. One called the other one crazy, apparently for something that he said about a video game, and the other one responded: “Yeah, I’m crazy; I’m going to shoot up a kindergarten and eat one of their still beating hearts.”

Both of them understood this was sarcasm, but as it happens, there was a woman in Canada who was watching. She reported them to the authorities. He was arrested and held for four and a half months before he was eventually let out, but he is still facing trial.

We can’t wait to read the final verdict. Until it’s decided, let us know what you think in the comments below.