When Does Social Media Chatter Become Criminal? Previewing The Supreme Court’s ‘Elonis’ Case (Forbes Cross-Post)
About the Case
Anthony Elonis’ life hit a rough stretch. His wife left him and got a restraining order against him, and she took their children with her. Elonis’ Facebook posts were sufficiently troubling that his employer fired him. Law enforcement also took notice of his Facebook posts, including a home visit and interview with an FBI agent. Throughout this time, he chronicled his life on Facebook, including several statements that expressed or implied his desire to take violent actions. Elonis claimed he is an amateur rapper inspired by Eminem, and these “threats” weren’t serious; they were just rap lyrics. Nevertheless, the people mentioned as targets felt threatened by his posts.
A jury convicted Elonis of violating 18 U.S.C. § 875(c), which criminalizes the interstate transmission of “any communication containing…any threat to injure the person of another.” The jury was instructed that it could convict Elonis if a reasonable reader would “objectively” interpret his Facebook posts as threats; even if Elonis subjectively never intended to make a threat or hurt anyone. Elonis was sentenced to 44 months of prison plus 3 years probation.
The Supreme Court is being asked to decide whether a potentially threatening statement should be interpreted “objectively” (what the listener reasonably perceived) or “subjectively” (what the speaker meant to say). While this legal question may sound arcane, it’s a vital one to social media communications. If the legal test is subjective, social media posters can freely discuss violence towards others and then claim (possibly retrospectively) they didn’t intend to make a threat. Thus, we’d anticipate many defendants will say they are just emulating rappers like Eminem, no matter how vicious or threatening their posts sound. In light of the obvious problems that would create for criminal enforcement, I would be surprised if the Supreme Court adopted the subjective test.
Still, the objective test has its own problems. First, to determine if a social media post communicated a threat to a reasonable person, we have to understand the post. The post may contain internal signals–an emoticon, an LOL, a Rickroll–that tell readers about the author’s true intent…but only if the readers recognize those signals, and sometimes signals are sufficiently obscure. Second, we have to contextualize the post by reviewing posts before or after the one in question. Even if a post in isolation might sound threatening, the surrounding posts may cause the post in question to take on a new meaning. Third, we have to know more about the likely readers of the post. People in niche communities develop their own norms and language that outsiders may not understand. For example, if all of the readers are quite familiar with Eminem, they may understand a threatening-sounding lyric quotation in a way that anyone unfamiliar with those lyrics would miss.
These contextualization questions aren’t unique either to criminal threat prosecutions or to social media. Indeed, they are exactly the kinds of questions we ordinarily submit to juries composed of our peers. Nevertheless, having juries make these decisions isn’t ideal. Jury trials are expensive, time-consuming and sometimes hard to predict, especially when none of the jurors have first-hand experience with a relevant niche community. Thus, even if you’re confident that a post won’t be interpreted as a threat, you’ll still think twice about making a borderline post if your fate depends on prosecutorial discretion and an expensive and possibly dicey jury trial.
It bears noting that even if Elonis dodged a criminal threat conviction, his social media posts could still cost him his job, contribute to a restraining order, and alienate his family. In other words, even if we have the legal right to make edgy social media posts, we will remain accountable for our words in many other ways.