Violent Online Writings: Criminal Threats or Free Speech?


How does our country balance First Amendment freedom of speech with violent, apparently threatening words? This question is becoming increasingly important in an online world. Some Internet users believe they should be able to freely express violent thoughts online. Because the Internet offers a feeling of anonymity, many people are less cautious about expressing violent thoughts than they are in the “real world.” This brings us to the case of a Pennsylvania father and husband named Anthony Elonis.

When his wife and children left him, Mr. Elonis started posting on Facebook graphically violent rap music lyrics that he had written. Writing about his estranged wife, he posted, “There’s one way to love you, but a thousand ways to kill you. I’m not going to rest until your body is a mess.” When a state court issued her a Protection from Abuse order, he questioned on Facebook if the order was “thick enough to stop a bullet.” He also posted, “That’s it, I’ve had about enough/ I’m… 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?” After an FBI agent came to his home to investigate this behavior, he posted, “Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat.”

Mr. Elonis was tried in a criminal court in Pennsylvania on charges of making threats. The jury was instructed to consider whether a “reasonable listener” could objectively believe whether his postings represented “true threats.” His ex-wife and coworkers testified that they were genuinely afraid of him after reading his Facebook posts. The jury found Mr. Elonis guilty of four counts of making threats. The judge sentenced him to 44 months in prison.

Mr. Elonis appealed the decision to The Third Circuit Court of Appeals. The appeals court upheld Mr. Elonis’ conviction, noting that he intended to write what he wrote and it did not legally matter if he intended it as a threat.

Mr. Elonis further appealed the decision to the U.S. Supreme Court, arguing that he had only been copying the style of the rapper Eminem. He argued that his lyrics were “therapeutic,” with no intention of being threatening. He also posited that the objective “reasonable listener” test was wrong.

In May 2015, the Supreme Court overturned Mr. Elonis’ conviction. It remanded the case for re-evaluation under a stricter standard: the trial court had to consider Mr. Elonis’ mindset and intentions. In the Court’s opinion, Chief Justice John Roberts wrote, “Federal criminal liability does not turn solely on the results of an act without considering the defendant’s mental state.” The court did not specify the appropriate standard of assessing Mr. Elonis’ intentions, but it did write that the “reasonable person” test was insufficient to determine whether he had posted threats.

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