Is it illegal to make threats on Facebook? Supreme Court decides.

How far does the protection of free speech go? 

The Supreme Court of the United States (SCOTUS) recently heard a case involving a man who made multiple threats on Facebook against his wife. The government claims these threats were a federal crime and qualify under the threat exception to the First Amendment protections of free speech. The man counters that his threats on the social media site were simply his way of venting, that no serious harm was meant. Lower courts found him guilty of violating federal law.

Impact of the case

This case, Anthony D. Elonis v. United States of America, involves an important First Amendment question on the extent of protections granted to speech. At what point can an individual be guilty of committing a felonious speech crime? Does that individual simply need to intend to threaten the person or is something more required?

The case began in 2010. Elonis’ wife of seven years had just left him and taken their two children with her. He made a series of posts on social media about his situation, “frequently in the form of rap lyrics, using ‘crude, spontaneous and emotional language expressing frustration.'” He stated that the lyrics helped him deal with the pain. The lyrics included threats to kill his wife and partake in a school shooting. This prompted an FBI agent to visit Elonis. After he was questioned, he posted lyrics about killing the agent. Shortly thereafter, he was arrested and charged with threatening coworkers, his wife, police officers, a kindergarten class and an FBI agent. He countered that the “indictment failed to allege that [he] subjectively intended to threaten” anyone, something he argued was required to meet the “true threat exception to the First Amendment.”

The lower courts instructed the jury to review the statements using the reasonable person test. Would a reasonable person find these statements threatening? When asked this question, the jury found the statements threatening and convicted Elonis. He took the case to SCOTUS, which agreed to review.

Chief Justice Roberts appeared to make a point to discuss how the threats involved “real people.” Ultimately, SCOTUS found that the jury’s instructions were lacking – a finding of negligence was not enough to support a conviction under the federal threats statute. The case was remanded.

Importance of legal counsel

It is important to note that although the First Amendment does offer broad freedom of speech protections, true threats are not a protected form of speech. Unfortunately, SCOTUS does not provide much guidance with this case. However, the case does provide an example of how threats can lead to criminal charges.

Those who face these or similar charges are wise to seek the counsel of an experienced criminal defense lawyer. It is wise to take the charges seriously and build a strong defense, since a conviction can lead to monetary fines and potential imprisonment.