Can You Go to Jail for Posting ‘Threats’ on Facebook? The Supreme Court Won’t Say

Handcuffed fists hit computer keyboard in frustration
Photo: Don Bayley/(c) Don Bayley

The Supreme Court has a tradition of granting First Amendment protections to some of the most hateful people in history, and you could argue that wannabe rapper Anthony Elonis fits the bill. He’s at the center of Elonis v. United States, a case that could have defined to what extent free-speech protections extend to “threats” a person posts on Facebook.

Elonis is the prototypical online troll: that virulent, good-for-nothing cybercharacter who uses a fake identity, has a thing for expletives, and needs an outlet to vent his pent-up frustration at humanity, all under the banner of freedom of expression. He is precisely the kind of person the First Amendment was designed for.

But Chief Justice John Roberts, who wrote the decision, chose not to touch the First Amendment. He had every opportunity to issue a companion ruling to his celebrated opinion on cell phone searches — which included the admonition to cops to “get a warrant” before rummaging through a smartphone — thus bringing the court a little closer to modernity. Instead, he and six other justices issued a narrow ruling that dodged the question of whether the First Amendment applies to social-media posts — particularly those others could interpret as “threats” to cause harm.

Everything about the case suggested its potential to be a memorable decision. Roberts had already quoted Eminem during oral arguments in the case, and in his written opinion he went through the motions of reprinting word-for-word some of Elonis’s fiery posts targeting his wife, co-workers, police officers, a federal agent, and even schoolchildren:

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?

To federal authorities, these graphic rants were all part of a scheme by Elonis — who changed his Facebook name to “Tone Dougie” to distinguish his rap identity — to carry out some unspeakable acts in real life. And predictably, they indicted him several times under the federal threat statute — which, they argued, only requires that a “reasonable person” interpret the speaker’s words as “as a serious expression of an intention to inflict bodily injury or take the life of an individual.”

In other words, forget what Elonis actually intended with his lyrics. All that matters under federal law is what his ex-wife and co-workers, who testified “they felt afraid,” thought about them. Whatever their thinking, it just had to be reasonable in order for Elonis to be found guilty.

Rightfully, Roberts and the majority rejected this approach under basic principles of criminal law. The court noted that “wrongdoing must be conscious to be criminal” — that is, the government can’t just go after you because of how others feel about you. Indeed, people may very reasonably feel you said something really terrible to them, and may even sue you for causing them emotional distress. But under criminal law, their feelings, no matter how reasonable, are irrelevant. Roberts put it this way: “The central thought is that a defendant must be blameworthy in mind before he can be found guilty.”

All of that is well and good, but then things got really confusing. Because in the process of ducking the free-speech concerns, Roberts engaged in a lengthy and largely unsatisfying analysis of the threat statute. That law doesn’t specify the state of mind needed for guilt, but most laws do — they’ll say you have to act knowingly, purposefully, or at least recklessly before you can be slapped with a really long sentence. But the federal threat statute is silent. And Roberts did nothing to specify the mental state required. His decision simply stopped at “wrongdoing must be conscious to be criminal,” and refused to go any further. Roberts called this reluctance “prudence.”

Justices Samuel Alito and Clarence Thomas weren’t having it, and both blasted the majority for not elucidating the intent requirement. Alito, a former federal prosecutor, said the court’s move “is certain to cause confusion and serious problems” among lawyers and lower courts, which would be “left to guess” on how to proceed with similar cases. And Thomas complained that the court left “nothing in place” and that its indecision “throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.” Legal commentators seem to agree.

In the end, the Supreme Court reversed Elonis’s conviction. This is all going to help him sleep a little better at night — he could use the good news after some trouble he’s gotten into lately. But the case still leaves unsettled thorny First Amendment issues about the things people post on social media — specifically, whether the law of “true threats,” under which the government could ostensibly punish social-media users, applies in the Facebook context. This stuff is no joke.

This explains why a host of civil-liberties groups, media organizations, domestic violence coalitions, and even rap scholars were closely watching Elonis and hoping for a ruling on the free-speech issue. Roberts dodged the matter by merely invoking the court’s “disposition” to decline these matters, whatever that means.

In a perfect world, the justices should’ve just embraced the free-speech issues head-on and ruled conclusively that the First Amendment raises the bar a bit for what prosecutors are required to prove the next time one of your crazy friends on Facebook goes through a crazy breakup and decides to post gangsta rap lyrics as therapy. These things show up in criminal cases more often than you think, and even Killer Mike has an opinion about it.

Maybe next time. Until then, a mash-up of Chief Justice Roberts and Eminem, aptly titled “Roberts and Clyde,” will have to do.

Are Online ‘Threats’ Illegal? SCOTUS Won’t Say