With the Vietnam War escalating, teenager Robert Watts signaled his opposition to President Lyndon B. Johnson’s policies by telling a political rally that if drafted and forced to carry a rifle, “the first man I want to get in my sights is L.B.J.” The government took Watts’ jibe seriously enough to prosecute him under a broadly written federal law that makes it a crime to “knowingly and willfully” threaten the president.
At the Supreme Court, however, the justices ruled, 6-3, that Watts was guilty only of “political hyperbole,” not a “true threat.” Watts’ statement, “taken in context,” had to be interpreted as constitutionally protected speech, the Court wrote in an unsigned opinion in Watts v. United States (1969).
Fast forward more than 40 years to a bitter divorce in 2010 marked by seemingly violent Facebook rants by Anthony Elonis against, among others, his wife Tara and an FBI agent who had been monitoring Elonis’s Internet posts. Elonis was prosecuted under the general federal law against threats, convicted, and sentenced to 44 months in prison.
On appeal to the Supreme Court, however, Elonis argued that his pseudonymous Facebook posts were “therapeutic” and not “true threats” at all. And his appeal in Elonis v. United States gained attention as a first-ever, high-level airing of how to apply free-speech rules to the new world of social media.
Free-speech groups, including the American Civil Liberties Union and leading media organizations, filed briefs supporting Elonis’s appeal even while dissociating themselves from what the ACLU called Elonis’s “crude and offensive” postings. They warned that, in upholding Elonis’s conviction, the Third U.S. Circuit Court of Appeals had found no need for prosecutors to prove that he actually intended to threaten physical harm to his wife or the FBI agent.
The free-speech concerns about the appeals court ruling may be well placed, but the Supreme Court ought not be misled into making Facebook a wild, wild West for violent postings. Social media need First Amendment breathing room, of course, but a smiley face or “LOL” is not enough to immunize what would be seen as a “true threat” if delivered in a face-to-face conversation, a telephone call, or an old-fashioned, written letter.
Representing the government, deputy U.S. solicitor general Michael Dreeben rightly noted in the arguments last week [Dec. 1] that threats “cause harm and disruption to society and to the individuals who are targeted” even if they seem unlikely, or even impossible, to be carried out. Speakers should be presumed to understand the meaning of words they speak, Dreeben contended, and should be held “accountable for the consequences of those words.”
Elonis’s postings clearly caused the kind of harm and disruption that Dreeben had in mind. After his wife obtained a “protection from abuse” order, Elonis asked on Facebook, “Is it thick enough to stop a bullet?” On the same day, he posted that he had “enough explosives to take care of the state police and the sheriff’s department.”
The next day, Elonis appeared to threaten a mass shooting at the kindergarten class at a local school. The school reported the post to the FBI, which sent agent Denise Stevens to Elonis’s home the next day. Elonis refused to be interviewed and, later that day, suggested in a Facebook post that he would be strapped with a suicide bomb if she returned.
Representing Elonis, Washington, D.C., appellate expert John Elwood argued that subjective intent was, and always has been, a necessary element of proof in a threat prosecution. But justices across the ideological spectrum questioned how, as a practical matter, the government could meet that burden. “How does one prove what’s in somebody else’s mind?” Justice Ruth Bader Ginsburg asked.
Elwood answered that in the digital world there would be abundant evidence on a cell phone or computer of a speaker’s state of mind. But Chief Justice John G. Roberts Jr. was unconvinced. He noted Elonis’s contention that the posts were either therapy or rap-style artistry. “Based on your submission,” Roberts told Elonis’s lawyer, “all he has to say is either . . . it’s therapeutic, it’s a good thing I could do this, or it’s art.”
Later, Justice Samuel A. Alito Jr. said Elwood’s argument amounted to “a roadmap for threatening a spouse and getting away with it.” “You put it in rhyme and put some stuff about the Internet on it,” Alito continued, “and you say, ‘I’m an aspiring rap artist.””
Less pointedly, some justices voiced concerns about overregulating. Roberts, for example, acknowledged Elwood’s point that social media are a distinct “subculture” and teenagers in particular could be sent to jail for what Elwood called “ill-timed, sarcastic comments.” Justice Sonia Sotomayor noted to Dreeben that the court has been reluctant to create new “exceptions” to the First Amendment. But Dreeben countered that the existing rules are “not an exception” to the First Amendment but “part of the implementation.”
Elonis has already served three years in prison, so the case is important mostly for the rule the justices will lay down. Social media already have more boorish language and conduct than needed. The Supreme Court needs to articulate a careful standard that can protect “true” political speech and satire on social media without giving free rein to those who would use the First Amendment as a license for threats of violence, laughing out loud through their posts.