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SCOTUS tackles free speech vs. true threats in Facebook posts

SCOTUS tackles free speech vs. true threats in Facebook posts

The “cross burning case” goes digital

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—-
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


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Not being a Facebook user (I never trusted it, ever), correct me here if I’m wrong…

Someone had to start a device (computer, iPhone, some damn thing).

Someone had to bring up Facebook.

Someone then had to go to this guy’s personal timeline.

Then they had to read what he’d written.

ALLLLLLLL that BEFORE they could “feel threatened”.

This seems tantamount to having to walk into a home, drag out a personal diary, and read it so you can find passages about yourself.

Nobody “threatened you” in these scenarios. They weren’t addressing you. It’s an important distinction.

Or did I get it wrong?

    filiusdextris in reply to Ragspierre. | November 24, 2014 at 12:59 pm

    A lot of times a classmate or a coworker will show the threat to the intended victim. So your characterization is a bit inadequate.

    gregjgrose in reply to Ragspierre. | November 24, 2014 at 1:37 pm

    If one of my ex’s was as nutty as this fruitcake appears to be, I’d be checking Facebook too, even from Tennessee to Texas, as the song goes.

    Chances are no one besides the author will ever see the diary. A post on someone’s facebook timeline can be seen by anyone with just a few clicks. And just because the ‘victim’ hasn’t seen the threat doesn’t mean the threat doesn’t exist.

      Ragspierre in reply to Vince. | November 24, 2014 at 4:00 pm

      Here, let’s take this out of the realm of the hypothetical…

      The other day I suggested that Jon Gruber should be tarred and feathered, and then hung by his scrotum for the pleasure of crows. Right here, on our stage (as Ed Sullivan used to say).

      Should I be criminally charged with threatening the execrable Gruber?

        I don’t know? What would the Secret Service do if you published the same about the president?

          Milhouse in reply to MarkS. | November 25, 2014 at 7:28 pm

          Nothing at all. It is 100% lawful to say that the president ought to be tarred and feathered. For that matter, it is 100% lawful to say that the president ought to be killed, that one hopes he is killed, that it reflects poorly on our nation that nobody has had the guts to kill him, that whoever kills him will go down in history as a hero. None of those things are threats at all, let alone true threats.

          Even something phrased as a threat is lawful, if it’s not a “true threat”. It is 100% lawful to tell an anti-draft rally that “If they ever make me carry a rifle the first man I want to get in my sights is that bastard 0bama”. Nobody hearing that is going to conclude that you actually intend to kill the president, so it’s protected speech.

        Ragspierre in reply to Ragspierre. | November 24, 2014 at 4:39 pm

        You don’t address the question. Why?

        jayjerome66 in reply to Ragspierre. | November 24, 2014 at 5:16 pm

        The same kind of distinction would probably be made as in the Public Figure Doctrine in a libel case. Under law, special rules apply giving latitude to statements made concerning public figures.

        And the explicitness of the language used too would determine your culpability: if you said ‘I am going to hang him by his testicles’ instead of he ‘should be hung’ that would be a specific threat, and they’d haul you away.

          Milhouse in reply to jayjerome66. | November 25, 2014 at 7:30 pm

          There is no difference between public and private figures for threats. But no, “I am going to hang him by his testicles” would not be enough to arrest Rags, because it would not be a true threat. A reasonable reader would not understand that Rags actually intended to carry it out, so it’s protected.

        Milhouse in reply to Ragspierre. | November 25, 2014 at 7:22 pm

        No, because you didn’t say you were going to do it, you merely expressed the opinion that somebody ought to. That’s not a threat, it’s advocacy, and 100% protected speech. Only if you’d phrased it as a threat would we reach the question of whether it was a “true threat”, i.e. would a reasonable person understand it to be mere rhetoric, or would they take it seriously and actually think you were going to do it. And only such a true threat is exempt from the first amendment.

I would like to suggest there be a law to incarcerate those who are guilty of extreme stupidity. People this stupid should not be allowed to walk among us. Although buggy-whipping threats are frightening, those made by Elonis appear to have trumped that.

As a retired Police Officer (& Detective with 37 yrs service) I have had many cases in which written threatening screeds were the complaint. We had a rule of thumb here in which we worked with the D.A.’s office and didn’t prosecute unless the threat was made in such a manner that the perpetrator was in a position to carry out the threat (i.e.– the perp had to be present to act on the threat or had to make some type of overt act that would show intent to carry through such as being seen in the area of the threatened victim). We were able to use the stalking laws to great effect at that time and that approach removed the “snowflake effect” in which some victims were so sensitive that a shirt would offend them. True, many times the rants against some were very disturbing and absolutely terrified some victims but the larger picture was the care of everyone’s constitutional rights and in light of that we took care to not tread too heavily on the written word unless the overt act took place to show intent. (The overt act could include an escalating of the rhetoric but that type of action was frequently handled by the victim in civil court not as a criminal action.) When possible we conducted interviews with the person posting such threats and thus showed them that they had our attention. Some coaching of the victim in how to lessen their feelings of victimization helps in many cases (advice on self-defense classes, both unarmed and armed, acquisition of carry permit, basic awareness and home security and how to look at yourself as an equal to the threat instead of succumbing to the “roll over, curl up and hide” thought process.)
The reluctance to use the “reasonable person” standard is based on real-life experience because some people are upset at most anything and care must be taken to not criminalize everything that happens just because someone is offended. The true threats can be taken care of with existing laws without burying anyone’s rights.

    Valerie in reply to lowready. | November 24, 2014 at 1:35 pm

    This approach, words plus some act, is rational. I would add that educating people to be cautious with Facebook is not a good strategy. If you shut down everybody that rants, you lose an indicator about who might pose a real danger.

The language against the estranged wife sounds like a threat that might be carried out. “Fold up this order and see if it protects you from a bullet” would send me to a battered women’s shelter. The Facebook page of someone against whom she has a protective order is public in these days. It’s like telling the guys at the corner bar that he’s going to shoot her.

    Ragspierre in reply to tarheelkate. | November 24, 2014 at 9:57 am

    Which should prompt the guys at the corner bar to confide to the police and maybe the guy’s pastor.

    But it is not a crime. It isn’t even a threat to her, since it was not communicated to her, and maybe very carefully NOT communicated to her, since the guy might easily mean her no harm at all, including psychological harm.

      Whether it is a crime or not, it is making a public spectacle out of one’s willingness to commit acts of violence. If nothing else the elementary school entry was going to raise eyebrows even from very “reasonable” people who don’t see joking about this (not that it seems to have been a joke..) to be in good taste, any more than proclaiming one’s desire to behead one’s co-workers with a meat cleaver or having too much fun with high explosives or axing people questions at synagogues. It is wrong, however legal it may prove to be. I think the tolerance for those kinds of threats against random people is a lot lower than for threats against specific individuals because of the scale of potential damage for each.

      Ragspierre in reply to Ragspierre. | November 24, 2014 at 12:53 pm

      Let’s focus.

      We are NOT talking about “bad taste”. We are not talking about ungentlemanly or unladylike conduct.

      We are NOT talking about a communication that SHOULD be reported to authorities for them to have on their radar, and perhaps prompt a visit to the issuer of the statement.

      We ARE talking about making a very bad, stupid, disgusting statement NOT MADE to the person a CRIME.

      Now, make noooooo mistake here; the issuer of any such statement that can “reasonably” get to that person’s kids SHOULD, MOST CERTAINLY, be put before a finder of fact in a case of child custody, for instance.

      But it is NOT a crime.

        See, having been on the internet a couple of decades now, I feel like posting stuff like this on Facebook is the equivalent of stripping down to your underwear and carrying around a sign and parading it outside a well frequented tavern to broadcast your message. No, you are not specifically conveying that message to the person targeted by your message. You are instead conveying it to everyone with eyes and ears in your general vicinity.

        I’m certainly not familiar with the fine differences of law to judge whether making public threats is never a crime while making private threats personally conveyed is always a crime. But, I am challenging the idea that “just” posting on Facebook doesn’t mean a threat isn’t reaching its intended target. Instead of leaving a message on my (very fictional – I am single) ex-wife’s answering machine, instead I leave messages on her mother’s, her brother’s, and her two daughters’ cell phones instead. But I have not conveyed the threat to her specifically. That makes it legal? I feel that cuts things very thin.

        But it is NOT a crime.
        right now.
        shortly it will be either a crime or a tax (depending on who writes it) mark my words.
        and in this situation it should be labeled stupidity but not a crime.
        from the little i have read none of the crap was DIRECTLY to her.If it had then it should be considered a threat.

        Ragspierre in reply to Ragspierre. | November 24, 2014 at 1:59 pm

        So, what’s your position? Do you want to cut things very THICK?

        This is why CRIMINAL LAW is such a clumsy hammer, as I often say. It is NOT a scalpel.

        Bear in mind, too, that a person subjected to the conduct you describe in your last scenario…each of the relatives…would have a SEPARATE civil cause of action. With ANOTHER count for every time such a message was left.

        And the civil law OFTEN has shaped remedies for such situations where the criminal law fails.

        Just as a personal comment, if I were told by one of my children’s ex-spouses they intended them harm, I would NOT pass that along to my kid. I’m not that kind of dupe. I would assure that any such intent was going to be met with a very effective response, including calling in the authorities.

          gregjgrose in reply to Ragspierre. | November 24, 2014 at 2:36 pm

          Is this maybe a sorites debate? That is, just how direct (words face-to-face at one extreme, the private diary at the other) communication has to be to fit the standard of “terroristic threat” laws.

          And second, does it matter? If A threatens B, and nosy parker C brings it to B’s attention, does the sequence matter?

          California’s take below, if my google skills are to be trusted, and I don’t see (IANAL) a requirement that the communication be absolutely direct. That is, a threat “conveyed” is what is required. (But double IANAL)

          422. (a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

smalltownoklahoman | November 24, 2014 at 12:00 pm

A very tricky subject and one that would be extremely difficult to tackle without infringing on the first amendment. For instance, how does one tell apart someone just blowing off steam in an offhand comment from a true threat? We know this site got some attention recently for comments made about the whole Lois Lerner being followed and pestered by a reporter incident. While no one here seems to believe those comments were real serious threats apparently someone from the government was worried enough about them to use them as arguments in a case to not have IRS employee names revealed. I think lowready above has it right. We should be very wary of the “reasonable person” standard because it just gives lawyers and the government way too much weasel room for comfort.

    I’m not going to let that last part stand.

    The “reasonable person” standard has worked for a couple of centuries here, and beyond that in other common law nations.

    It works quite well, really, and for an excellent reason; it is the essence of democracy, as juries are the “reasonable people”. NOT a judge. NOT a lawyer. NOT a government bureaucrat.

    Are they sometimes crazy? Yep. But that’s people.

    You don’t like “reasonable person”? What do you suggest?

      lowready in reply to Ragspierre. | November 24, 2014 at 2:55 pm

      Well, the two centuries that we have gone through with the use of the “reasonable man” criteria were not rife with political correctness nor the pressure that P.C. brings to bear on those that would make the decisions as to whether the act is a violation of a “reasonable person’s sensibilities”. As I progressed through my career with the Police Dept. I saw first hand how P.C. affected supervisors and how they pushed to “find” some probable cause for an arrest so the powers that be would be happy (it’s all about conforming if you want to be a supervisor and if you want to wear the real brass you must drink ALL the kool-aid). It sometimes took a person that didn’t care much for their future in the department to really stand up to that kind of pressure and those are few and far between. They could always find a sycophant to follow the company line in the investigation and that is why you really need firm, grounded rules to follow. Sure, you say that the jury is the arbiter of what is reasonable but you have to remember that if the Officer follows the political line and makes an arrest then the person may indeed walk after a jury trial but look at all the time and money spent on lawyers, being away from work, and other things that have come about as effects of the arrest. Some would say that the person brought it upon their self by making those foolish statements but the bottom line is we don’t punish with the process but with trials after justified arrests. You must be very wary of District Attorneys (shielded from lawsuits by rulings of the court) and of Police that get their promotions and sweet postings by toeing the P.C. line. Been there, seen that. Trust me, the further we go towards political correctness the more you want EVERYTHING spelled out in black and white as a check on government power for YOU may be the one that it is aimed at some day.

      Ragspierre in reply to Ragspierre. | November 24, 2014 at 3:38 pm

      Right, but you are talking TWO very different questions.

      NOBODY suggests that a LEO has to use a “reasonable person” standard as would be imposed on a jury.

      A LEO has a LOT more latitude, in fact, than does a juror. A LEO can be downright UNREASONABLE (which is not to suggest oppressive) in looking at the totality of stuff and picking through the chicken entrails. He/she is NOT limited by their instructions from a judge or the kabuki of the rules of evidence, as a juror certainly IS.

      As to the pernicious effect of PC, I KINDA agree. But we NEVER have lived outside of the culture…heaven help us…and we never will. From a historical perspective, there has NEVER been a USA without prejudices, passions, and preconceptions. Imagine being a Japanese-American defendant during WWII! Or a German-speaker in Wilson’s WWI America.

      Still, my position is the same; someone writing to a social media thingy is simply NOT CRIMINALLY threatening someone they do not address their bad, stupid, very awful idiocy to UNLESS they can be proven to have DIRECTED that idiocy TO the subject. That CANNOT be inferred because some OTHER idiot conveyed the idiocy to the subject. THAT idiocy is on THE OTHER.

        jayjerome66 in reply to Ragspierre. | November 24, 2014 at 5:47 pm

        “someone writing to a social media thingy is simply NOT CRIMINALLY threatening someone they do not address their bad, stupid, very awful idiocy to UNLESS they can be proven to have DIRECTED that idiocy TO the subject”

        So if you threaten to blow up a school on an FM radio broadcast, but no one in the school heard your broadcast because they only have AM radios there, and it didn’t fall on specific ears of people inside the building, that’s not a public threat to harm deserving arrest? The government would still have to prove it was a ‘true’ threat to convict you and not merely hyperbole.

        And on social media like Facebook if you’re sharing your words with anyone else, you’ve waived your right to privacy, and you’re disseminating public speech. The same legal rules should apply as above.

      smalltownoklahoman in reply to Ragspierre. | November 24, 2014 at 8:24 pm

      To be honest, I wasn’t even thinking of juries being the reasonable people. A bad mistake on my part since this blog deals with issues of the law. I was reacting to the points made by Amy Miller in her post and lowready in his comment about the reasonable person standard. My impression of it was it was the far more malleable or easily manipulated choice, something that with time and pressure crooked politicians and lawyers could essentially make it mean whatever they wanted it to mean. That is something I would definitely not want to happen as it would make it nearly impossible for someone accused of a crime from being able to defend themselves.

        smalltownoklahoman—my point exactly, we need to watch what the government does because that is where the real danger is. Creeping political correctness coupled with politicians and toady underlings can make for a very bad way to judge the facts of a case. Reasonableness in one person’s mind is total hogwash in another’s. There are those that would literally fall all over themselves to please their political masters and that can lead to evidence being misinterpreted or exculpatory things being withheld. My argument is that the law should provide a foundation for the case to be built upon and that foundation needs to spell out a minimum that is needed and leave the “reasonableness” to the judge. You have to remember that not all prosecutors or investigators have your best interests at heart. To some, an investigation is just a stepping stone and you may just be a paver to be walked on in the quest to satisfy the squeaky wheels that clamor for justice in whatever topic is the hot button issue of the day. It would be best to be sure that you don’t rely too much on someone’s best intentions.

    Not A Member of Any Organized Political in reply to smalltownoklahoman. | November 24, 2014 at 1:06 pm

    It’s not Facebook, it’s Facistbook!

    Snark Snark.

My license to practice includes two ethics issues, namely the duty to report and the duty to warn. I am required to report child abuse revealed to me via otherwise protected conversation with a client. I also have a duty to warn person(s) threatened with physical violence by a client, revealed to me via otherwise protected cnversation. The regs are big on what, tiny on how, that is, how I am to make the judgment calls.

There is a standard for ‘scoring’ suicidal and homicidal threats that may prove useful here: the levels of lethality.

Level 1 – Threat of suicide or homicide, but without plan or time to do it.

Level 2 – Threat of suicide or homicide incuding method/plan and the method/plan is reasonable, workable, doable. (“I’m gonna jump off the Empire State building!” meets level 1, not level 2, in that it is hyperbolic, not a viable plan). A threat with viable plan but no time specified is Level 2. ‘Viable’ requires client have access to gun, poison, kife, etc., whatever is specified in the plan.

Level 3 – Threat of suicide or homicide where the method or plan is viable, the client has access to th weapon, tool, vehicle, etc., and has specified a time to commit the threatened act.

Level 1 – “I’m going to kill my wife.” (Low level of lethality)

Level 2 – “I’m going to kill my wife with my deer rifle.” (Ruh-roh)

Level 3 – “I’m going to kill my wife with my deer rifle on Tuesday.” (call the po-po).

This is going to be GREAT when the audio is released and we can watch it acted out by dogs.

I see no problem with the “reasonable person” standard. We use it everywhere else in the law, why not here? The “reasonable man”, also known as “the man on the Clapham omnibus”, is not a snowflake, and no amount of PC propaganda can change that. (See A.P. Herbert’s famous piece on whether there is such a thing at law as a “reasonable woman”.) If a reasonable person, reading this man’s Facebook posts, would conclude that he was about to do something violent, and would take precautions, then it’s a true threat; if not, then it’s not a true threat, and is protected speech.