Facebook and Internet Threats: Will the United States Supreme Court Allow a Negligence-Objective Standard to Prove a Threat?

BY BELKENIA CANDELARIO- On December 1, 2014, the United States Supreme Court will hear oral arguments in a major case—Elonis v. United States—concerning fundamental freedom of speech First Amendment rights.

The issues before the U.S. Supreme Court are: (1) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, and (2) whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the Supreme Courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by the Third Circuit and other federal courts of appeals and state courts of last resort.

This case arises out of posts that Petitioner-Defendant Anthony D. Elonis made during 2010 on the social media website Facebook. In December 2010, petitioner was arrested and charged with violating 18 U.S.C. §875(c). Section 875(c)criminalizes transmissions “in interstate or foreign commerce [of] any communication containing any threat to kidnap any person or any threat to injure the person of another.”

A grand jury indicted Petitioner on five counts, for allegedly making threats to injure his wife (whom he was separated from), employees of Dorney Park (where petitioner had previously worked before being discharged for posting a Halloween picture that depicted him attempting to stab a co-worker, who was also in costume), police officers, a kindergarten class and an FBI agent.

At his federal trial, Petitioner argued that the indictment failed to allege that petitioner subjectively intended to threaten those individuals, which he claimed was required both by the statute and the First Amendment. The district court denied[i] Petitioner’s motion to dismiss on grounds that circuit precedent required the government only to “prove the defendant intentionally made the communication, not that he intended to make a threat.” The district court also held that an objective standard was likewise constitutionally sufficient if a “reasonable person would foresee the statement” and interpret it as a threat.[ii]

On appeal, Petitioner argued that his conviction should be reconsidered in light of Virginia v. Black, 538 U.S. 343 (2003), instead of United States v. Kosma, 951 F.3d 549 (3d Cir.1991) (involving the prohibition on threats against the President), the case on which the district court relied upon to hold that petitioner’s subjective intent was irrelevant. Nevertheless, the court held that Kosma was “clear precedent” that Section 875(c) required only proof that “a reasonable person would foresee that the statement would be interpreted” as a threat. The court affirmed the decision of the district court and rejected the argument that Black indicates a subjective intent to threaten is required.

Petitioner argued to the appellate court and (based on its brief) will be arguing to the U.S. Supreme Court that in Virginia v. Black, the Court found that constitutionally unprotected “true threats” were “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence” on someone.[iii] Thus, under Black, a constitutional analysis ofsection 875(c) would render it unconstitutional if the Court finds that it does not require the government to prove defendant’s mens rea.

This case is of major importance because one of the most basic components of freedom of expression under the First Amendment is the right of freedom of speech. The Supreme Court has held in a variety of cases that the government may not regulate speech “because of its message, its ideas, its subject matter, or its content.”[iv] For example, the Supreme Court in Arkansas Writers’ Project, Inc. v. Ragland, held that invalid content regulation includes not only restrictions on particular viewpoints, but also prohibitions on public discussion of an entire topic.[v] Further, in Turner Broadcasting System v. Federal Communication Commission, the Court held that when Congress promulgates content-based restrictions, the government is required to provide substantial justification for the interference of the right of free speech where it attempts to regulate the content of the speech. Section 875(c) is clearly regulating the content of speech. Does the government have sufficient justification to regulate a Facebook page based on what a third-person, without any context, would perceive as a threat?

“The outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what [the freedom of speech] constitutional guarantee means and how it should be applied in concrete cases.”[vi] If the Court finds that an objective standard is sufficient to satisfy Constitutional requirements, the ruling will prohibitively limit free speech since the right to freedom of speech is supposed to allow individuals to express themselves without interference or constraint by the government—especially when they are just simply expressing their feelings without any intent

[i]United States v. Elonis, No. CRIM.A. 11-13, 2011 WL 5024284, at *1 (E.D. Pa. Oct. 20, 2011) aff’d, 730 F.3d 321 (3d Cir. 2013)

 [ii]United States v. Elonis, 897 F. Supp. 2d 335, 343 (E.D. Pa. 2012) aff’d, 730 F.3d 321 (3d Cir. 2013) cert. granted, 134 S. Ct. 2819 (2014)

 [iii]Virginia v. Black, 538 U.S. at 359.

 [iv] Police Dep’t v. Mosley, 408 U.S. 92, 95 (1972). See also Erznoznik v. City of Jacksonville, 422 U.S. 205, 208–12 (1975); First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Carey v. Brown, 447 U.S. 455 (1980); Metromedia v. City of San Diego, 453 U.S. 490 (1981) (plurality opinion); Widmar v. Vincent, 454 U.S. 263 (1981); Regan v. Time, Inc., 468 U.S. 641 (1984).

 [v] Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230 (1987) (citing Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 537 (1980)).

 [vi] T. Emerson, The System of Freedom of Expression 15 (1970). See, e.g., Consolidated Edison Co. v. PSC, 447 U.S. 530, 534–35 (1980); First National Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978).

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