In the 2003 barnburner Virginia v. Black, the Supreme Court held unconstitutional a statute that in part stated that the act of burning a cross constituted prima facie evidence of an intent to intimidate a person or group. Writing for the majority, Justice O’Connor said that “just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.”

Next week, the Supreme Court will be asked to apply this standard to speech in a new and controversial venue: a man’s Facebook timeline.

Anthony D. Elonis was sentenced to four years in federal prison after a court determined that violent rants posted to his personal Facebook page constituted a “true threat” to his estranged wife, former coworkers, and even a federal agent.

The Washington Post has the background:

About a week after Tara Elonis convinced a judge to issue a protective order against her estranged husband, Anthony, her soon-to-be ex had this to say:

“Fold up your PFA [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?”


He was fired after co-workers interpreted one of his Facebook postings as a threat to them. He responded: ““Someone once told me that I was a firecracker. Nah, I’m a nuclear bomb and Dorney Park just f—– with the timer.”

In other postings, Elonis suggested that his son dress as “Matricide” for Halloween, with his wife’s “head on a stick” as a prop. He pondered making a name for himself by shooting up an elementary school and noted that there were so many nearby to choose from — “hell hath no fury like a crazy man in a kindergarten class.”

That brought a visit from an FBI agent, and the prolific Elonis later recalled that with this posting:

“Little Agent Lady stood so close
Took all the strength I had not to turn the b—-
ghost
Pull my knife, flick my wrist, and slit her throat”

There was much more. But Elwood’s brief noted that Elonis created a rapper-sounding pseudonym — “Tone Dougie,” a combination of his first and middle names — for his screeds and sprinkled the postings with references to his “art” and First Amendment speech rights.

The Court has never specifically ruled on whether or not a prosecutor must show intent to carry out verbal or written threats in order to get a conviction; lower courts are split, with most simply requiring enough evidence to show that a reasonable person (our favorite recurring character) would see or hear the speech and believe that it is “a serious expression of an intention to inflict bodily injury or take the life of an individual.”

Unfortunately for our friend Tone Dougie, he was convicted under this lesser standard, and served more than three years in prison before being released.

My overwhelming desire to hear any one of the nine force an appellate attorney to define a “Tone Dougie” aside, I can’t wait for argument on the merits of this case, because as of right now, we have no real standard for “threatening” speech online. At what point does your catharsis go too far? It depends on where you choose to unleash your thoughts, which seems bizarre and wrong considering constitutional rights are at stake.

So, what’s the standard? Do we need proof of a defendant’s (subjective) intent to threaten, or are we governed by the reasonable person standard? If the latter, you’d better queue up those cans of worms, because things are about to get insane in the blogosphere.

I can just about guarantee that if the Court goes with a reasonable person standard, we’re going to see an immediate (down to the nanosecond) push from “victims’ rights advocates” and other special interest marchers to turn the infamous reasonable person into a very sensitive character indeed. Half the internet just had a life-altering meltdown over a t-shirt featuring pinup cleavage. It was a microaggression. It was threatening. It made the bowels of the internet uncomfortable, and a man’s crowning life achievement was ruined because his choice of shirt simply couldn’t be allowed to stand. What do think is going to happen when these people figure out they’ve been served up a legal mechanism that could eventually be used (we must, after all, evolve on these things) to target those whose speech is deemed unacceptable by the madding crowd?

This case may be the most important the Court hears all session, because it has the potential to forever impact how we interact with each other online. Remember—we’re looking for the Court to define a standard, not pass judgment on the propriety or prudence of particular types of speech. That standard will apply to everyone who chooses to express their thoughts and feelings online, which makes me want to be one of those people marching on the steps of the Supreme Court right about now.

SCOTUSblog has the case timeline here.

Lyrics in the Featured Image: Eminem’s “Love the Way You Lie,” © 2010 Aftermath Records