If you’re one of the 40 percent of American adults who has experienced online harassment, the Supreme Court has bad news for you: It’s about to get harder for authorities to prosecute people for making violent threats online.
In a 7-2 decision Monday, the court threw out the 2011 conviction of Anthony Elonis, the Pennsylvania man sentenced to 44 months in prison for making violent threats against his wife and kindergarten class (as well as various law enforcement officials) on Facebook. The New York Times notes that Elonis was convicted under a federal law that criminalizes communicating "any threat to injure another person." Elonis’ lawyers argued that his graphic statements were protected under the First Amendment as "tongue-in-cheek remarks in the style often used by rap musicians," Politico reports. Since "true threats" of imminent violence aren’t protected by the First Amendment, a lower court upheld Elonis’ conviction.
Here’s where things get tricky. Writing for the court’s majority, Chief Justice John Roberts ruled that the "reasonable person" test—i.e. that a clear-thinking person would have seen Elonis’ Facebook postings as explicitly menacing—used by the lower court wasn’t a high enough standard to prove that Elonis’ graphic postings constitute a legitimate threat to his wife’s life. That his wife feared for her life (“I felt extremely afraid for mine and my children’s and my family’s lives,” she told the New York Times) wasn’t enough to put Elonis behind bars; the lower court must prove intent as well.
That his wife feared for her life wasn’t enough to put Elonis behind bars; the lower court must prove intent as well.
"The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error," Roberts wrote. “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”
This is, in part, a dodge. As Mother Jones’ Pema Levy writes, the Supreme Court is “avoid[ing] touchy First Amendment questions” by focusing on the lower courts’ specific interpretation of the statute used to convict Elonis. It does make sense for the Court to move thoughtfully and with purpose: Elonis’ case, after all, is the first time the Supreme Court has considered the limits of free speech in the burgeoning social media realm.
But the precedent of Roberts’ opinion—that causing a “reasonable person” to fear for their life isn’t a high enough standard to support a criminal conviction—has some potential ramifications for the ongoing conversation surrounding online harassment, especially in the wake of highly public digital flamewars like those sparked by the #GamerGate controversy in 2015.
On the one hand, the ruling recognizes that, in some cases, context matters. Consider a foul-mouthed adolescent talking trash over Xbox Live, or some moron mouthing off when their political candidate of choice doesn’t win a local election: Do those reckless outbursts necessarily rise to the level of a threat of bodily harm? Hardly.
But for those online, primarily women, who endure a constant, never-ending stream of vile rape and death threats for simply being women on the Internet, the court’s ruling may feel like a step back. A 2014 Pew Research Center study found that some 26 percent of these young women who have experienced online abuse have endured stalking, and another 25 percent, sexual harassment. And those threats, according to an amicus brief filed by the National Network to End Domestic Violence, are “often a precursor to actual violence,” as Mother Jones reports. The emphasis on proving intent, easily skirted by the claim of “I’m just joking on the Internet,” puts victims at a disadvantage.
There’s a broader societal explanation for this: Culturally, we still think of “online” abuses like harassment and stalking as less substantial or authentic than those that happen “in real life.” Journalists and domestic abuse advocates frequently illustrate this by describing how everyday police officers respond to reports of online abuse. Consider the police officer who, when writer Amanda Hess reported death threats in Palm Springs, responded with a quizzical “What is Twitter?” For activists, the traditional organs of law enforcement simply aren’t digitally literate enough to fully comprehend and adjudicate issues stemming from online behavior.
Perhaps the court's First Amendment dodge was actually a prudent jurisprudential maneuver. But for the thousands of people who deal with the daily torment of threats of violence, the court’s ruling is just another reminder that the law has yet to catch up to technology.