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When does online speech lead to real-life criminal prosecution?

A case pending before the United States Supreme Court might finally answer the question of when a threatening online message becomes a prosecutable offense.

Photo by Jason Howie (Flickr)

Between Facebook, Twitter, YouTube, and many more types of social media, people today have more options for communication than ever before. This abundance of choices has come at the cost of context which is provided by traditional, person-to-person forms of communication. Messages that are directly given can be more clearly conveyed by the speaker and easily processed by the listener, while the subtleties of an online message are easily missed and its true purpose lost entirely.

A speaker’s intention is often subjective and difficult to determine conclusively. A distanced audience on the other side of the screen can easily misinterpret a speaker’s intended meaning. Studies show that words themselves account for only seven percent of communication. The remaining ninety-three percent of communication is based on nonverbal body language that is broken up accordingly: thirty-eight percent vocal (volume, pitch, rhythm, ect.) and fifty-five percent body movements (mostly facial expressions).

The breakdown in communication that occurs online has made it difficult to determine when an online message can be legally classified as a “threat” subject to criminal prosecution. Several courts have taken up this question and no consensus has yet emerged. Most courts have held that the threat is a crime if a reasonable person would conclude that the threat was real. In other words, the majority view allows convictions when the defendant negligently misjudges his audiences’ interpretation. The Supreme Court of the United States might provide its own answer if it chooses to grant certiorari in the case of United States v. Elonis.

 Elonis argued that the authorities failed to prove his intent to threaten anyone.

Anthony Elonis is a 30-year-old Pennsylvania man with a proclivity for Facebook rants, often in the form of rap lyrics. His posts began to attract the attention of authorities in 2010 when he began to discuss attacks on his estranged wife, law enforcement, and an elementary school. One of Elonis’ posts stated, “That’s it, I’ve had about enough/ I’m checking out and making a name for myself/ Enough elementary schools in a ten mile radius/ to initiate the most heinous school shooting ever imagined/ and hell hath no fury like a crazy man in a Kindergarten class/ the only question is … which one?” Elonis was charged under 18 U.S.C. § 875(c) for transmitting “any threat to injure the person of another” in interstate commerce. He was convicted on four counts of interstate communication of threats and sentenced to 50 months in prison.

Elonis’ petition for certiorari argues that his subjective intent to threaten another person is an element of the “speech crime,” and the authorities failed to prove his intent to threaten anyone. Like the majority of the federal appellate courts, the United States Court of Appeals for the Third Circuit disagreed with his argument. The court ruled that the standard of proof is whether a reasonable person in the shoes of the target of the rant would believe the online speech to be threatening.

Elonis’ appeal to the Supreme Court of the United States is currently pending. His petition explains that his Facebook use after separating from his wife and losing his job was purely therapeutic and inspired by the popular rapper Eminem. He claims that his songs painted no more of a violent image than Eminem’s songs about his ex-wife.

 There are certain exceptions to the First Amendment, such as fighting words, which are not protected because of the speech’s content.

The First Amendment to the United States Constitution provides that Congress shall make no law abridging the freedom of speech. There are certain exceptions to the First Amendment, such as fighting words, which are not protected because of the speech’s content. Fighting words include, but are not limited to, true threats.

True threats are “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” (emphasis added). The intent requirement is harder to demonstrate in cases involving messages online. Courts have struggled to determine whether the speaker must subjectively intend a threat or if an objective interpretation of the message as a threat would be sufficient.

 Two Pittsburgh rappers were sentenced to prison for their music video posted on YouTube.

Courts are progressively exposed to more cases where online speech crosses the line of the First Amendment’s protection. Two Pittsburgh rappers were sentenced to prison for their music video posted on YouTube. It included lyrics such as: “[l]et’s kill these cops ‘cause they don’t do us no good. Pulling your Glock, oh cause I live in the hood.” The video also threatened by name specific police officers who had arrested the pair just months before and referred to a convict who already killed three officers.

Rashee Beasley and Jamal Knox argued that they never intended to hurt the officers and that the video was protected speech. Judge Jeffrey A. Manning of the Allegheny County Court of Common Pleas reasoned that the men are not protected by the first amendment because “[t]hey did, in fact, attempt to intimidate and communicate a threat. The music video, by its very nature, is a communication.” They were convicted of intimidating witnesses, conspiracy, and making terroristic threats on February 6, 2014. Beasley will serve one to three years in prison. Knox, who was also convicted of drug-related charges, will serve two to six years.

The Supreme Court declined to review a similar case in 2013. Franklin Jeffries II, an Iraq war veteran, posted a video on YouTube in 2010 threatening to kill a judge in Tennessee unless the judge granted visitation rights to his daughter. Similar to the Pittsburgh rappers, Jeffries II contended that he never intended to carry out the threat. The Obama Administration wrote (PDF) to the Court, “review of that question is not warranted because the circuit split is shallow and may resolve itself without this Court’s intervention and because any error was harmless.” The justices allowed Jeffries II’s 18-month term to stand by declining to rule.

 The remedy is more speech, not enforced silence.

In Elonis, the defendant claims he was not guilty of the charges because he did not intend to threaten anyone. This is in contrast to the arguments of the Pittsburgh rappers and Jeffries II, who did not deny that they had made threats, but only claimed that they did not intend to put their threats into action. The split among the appellate courts is focused on whether the burden of proving a true threat requires proof of the defendant’s subjective intent to threaten.

In 1927, United States Supreme Court Justice Louis Brandeis wrote: “[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” The time has come for his successors on the nation’s highest court to speak on the prosecutability of online threats.

Laura Tonch, Former Senior Staff Writer/Ethics
About Laura Tonch, Former Senior Staff Writer/Ethics (18 Articles)
Laura Tonch served as the Ethics Staff Writer for the Campbell Law Observer. She is a graduate of the University of Michigan where she earned a degree in General Business with a concentration in Pre-Law and a minor in Psychology. After her first year of law school, Laura studied abroad in Vienna, Austria to study Comparative Civil Liberties through Wake Forest University School of Law. She interned for the NC Department of Justice, Transportation Section during the summer of 2014. Laura graduated from Campbell Law School in May 2015.
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