Tag Archives | freedom of expression

United States Supreme Court decides Facebook true threats case

The Supreme Court has issued its long-awaited opinion in Elonis v. United States, the Facebook threats case. In a narrow opinion by Chief Justice John Roberts, the Court overturned the conviction of Anthony Elonis, who allegedly threatened his ex-wife and federal law enforcement agents through rap lyrics he posted to his Facebook page under personal hip-hop moniker “Tone Dougie.”

The government closed oral argument by emphasizing that “what [Elonis] thinks doesn’t matter.” The Supreme Court, on the other hand, said it does. Specifically, the Court held that in order to successfully prosecute a defendant under the federal interstate threats statute, 18 U.S.C. 875(c), the government must show that the defendant acted with a criminally culpable mental state beyond mere negligence. The Court rejected the notion that a criminal threats conviction could rest solely on proof that a hypothetical reasonable person would find that a statement amounted to a true threat.

The trouble with the opinion issued by the Court in Elonis — and with the current landscape of federal law on true threats — is that it remains unclear exactly what state of mind the law requires. The majority in Elonis expressly declined to decide whether recklessness is sufficient. Furthermore, section 18 U.S.C. 875(c) does not explicitly set forth a requisite mental state, so Elonis could trigger a legislative response by Congress. Lawmakers could shore up the language in 875(c) and explicitly define the mental state greater required for criminal threats convictions. The ball is in Capitol Hill’s court.

So what about the First Amendment?

The Court declined to address the First Amendment argument made by Elonis at trial and on appeal — that the Constitution requires the government to prove that the defendant specifically intended to threaten an identifiable person or group of persons when he communicated the threat. Justices Alito and Thomas chastised the majority for avoiding the constitutional question, but we saw this coming. When the Court granted certiorari in Elonis, it asked the parties to brief and argue the statutory interpretation question even though Elonis appealed solely on First Amendment grounds.

If there is anything we can infer about free speech jurisprudence from the Supreme Court’s holding in Elonis, it is that courts must look beyond the mere content of the purported threat and scrutinize the defendant’s behaviors for indicia of a criminal state of mind. Under Elonis, the hypothetical reasonable person may no longer be the sole arbiter of criminal speech determinations under 875(c). This standard provides some additional breathing space for threatening speech and heightens the importance of context. Nevertheless, artists, lawyers, and scholars are left wondering whether the First Amendment protects violence-laden speech uttered recklessly and without regard for foreseeable emotional and psychological harms to victims.

Brooks Fuller is a 3rd-Year Ph.D. student in the UNC School of Journalism and Mass Communication.


Student to Publish in Hastings Comm/Ent Law Journal

P. Brooks Fuller, a second-year Ph.D. student and Roy H. Park Fellow in the UNC School of Journalism and Mass Communication, has had an article accepted for publication in the Hastings Communications and Entertainment Law Journal (Comm/Ent). The article, “Evaluating Intent in True Threats Cases: The Importance of Context in Analyzing Threatening Internet Messages,” will appear in the Fall issue of Comm/Ent. The journal is published by the University of California’s Hastings College of Law and is among the best-known law reviews specializing in communications law and policy issues. The article is based on a research paper written for one of the J-School’s graduate media law courses. Brooks also presented his research earlier this month at the annual conference of the Association for Education in Journalism and Mass Communication in Montreal, Canada.

Brooks’ article examines federal courts’ treatment of Internet threats in light of the U.S. Supreme Court’s 2003 ruling in Virginia v. Black. The full abstract is below.

Following the Supreme Court’s most recent ruling on the true threats doctrine, Virginia v. Black (2003), significant conflict emerged among the federal circuit courts. The primary issue is whether an objective or subjective standard should apply to statutes that criminalize threats. Speakers’ use of social networking websites and Internet forums for the purposes of posting violent and intimidating communications raises significant questions regarding the posture of the true threats doctrine and its application to modern modes of communication. This paper utilizes legal research methods to examine federal courts’ treatment of Internet threats and highlights aspects of Internet speech that are particularly problematic for the doctrine. Ultimately, this paper calls for the Supreme Court to revisit the true threats doctrine in light of significant inconsistency among the circuits regarding the impact of the Internet on recipients of threatening communications.


United States Supreme Court to hear Facebook true threats case

For the first time since the now-famous Virginia v. Black (2003) cross-burning case, the Supreme Court is set to hear arguments in a “true threats” case. Commentators expect the Court to clarify confusion that has arisen among the federal circuit courts regarding whether the First Amendment requires courts to consider the speaker’s subjective intent when prosecuting the speaker under a criminal threat statute. The case, Elonis v. United States, also presents the Court with an opportunity to determine whether the true threats doctrine has evolved along with modes of online communication.

Elonis involves a defendant who was convicted in federal district court under title 18, section 875(c) of the United States Code, which criminalizes the transmission of a threatening communication in interstate commerce, including over the Internet. Anthony Elonis posted to his Facebook wall a series of posts that made references to rap lyrics by artist Eminem and a sketch comedy routine that satirized threats against political figures. The posts also used violent imagery and language to describe Elonis’s disdain for his wife, who had recently left him and taken custody of the couple’s two children. One of Elonis’s posts read as follows:

“Did you know that it’s illegal for me to say I want to kill my wife?

It’s illegal.
It’s indirect criminal contempt.

It’s one of the only sentences that I’m not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife.

I’m not actually saying it.
I’m just letting you know that it’s illegal for me to say that.
It’s kind of like a public service.
I’m letting you know so that you don’t accidently go out and say something like that
Um, what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife.…

I also found out that it’s incredibly illegal, extremely illegal, to go on Facebook and say some- thing like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. Insanely illegal.

Ridiculously, wrecklessly [sic], insanely illegal.

Yet even more illegal to show an illustrated diagram.


===[ __ ] =====house :::::::::::::::^





#########################getaway road


Insanely illegal.
Ridiculously, horribly felonious.”

Elonis followed that post with a link to a YouTube video posted by sketch comedy troupe the Whitest Kids U Know. The post tracked the language of the YouTube video nearly verbatim, evoking its cadence and core message, but focused on Elonis’s wife rather than the President. Another post purportedly made reference to Eminem’s song “I’m Back,” in which Eminem criticized his ex-wife and fantasized about participating in a school shooting.

Throughout the trial, Elonis, who adopted the online rap moniker “Tone Dougie,” testified that Facebook operated as a forum for venting his frustrations and anxieties about his home life. Elonis testified that he was not Facebook friends with his wife and that he never tagged her in the posts. He has always claimed that he lacked any specific intent to threaten her life.

At the heart of Elonis v. United States is the meaning of a key phrase in Justice O’Connor’s majority opinion in Virginia v. Black. Justice O’Connor stated that a true threat occurs when a speaker “means to communicate” a serious expression of an intent to commit an act of unlawful violence. But does this language require the prosecution to prove that someone like Anthony Elonis subjectively intended to threaten his wife or merely that he meant to distribute a communication some reasonable person would regard as a true threat?

In clarifying Justice O’Connor’s language, the Court may raise profound questions about how social media either facilitate or cloud the meaning, whether threatening or non-threatening, intended by speakers who use social media for catharsis.

If the Court imposes a subjective intent standard on all true threats statutes, then a defendant’s fondness for Eminem’s violent lyrics or anti-establishment comedy sketches becomes increasingly relevant and allows the jury to consider the meaning underlying cultural tropes such as gangster rap that frequently evoke violent imagery for expressive, artistic purposes.

If the Court follows the majority of the federal circuit courts and upholds the objective reasonable person standard as the only constitutional requirement under Black, then it would seem to signal that speakers in open Internet forums bear the responsibility for all reasonable interpretations of their incendiary posts, even when they lack the specific intent to threaten.

Elonis also advances the theoretical discussion of how social media create and sustain connections between speakers and listeners even when individual posts are not directed at certain persons or groups. Facebook operates as a communication ecosystem that thrives on “shares” and “likes.” The community decides the reach and value of speech, and the online community is empowered to distort the speaker’s intent and the message’s context. The Supreme Court now has an opportunity to decide whether intent matters in determining whether a speaker should bear criminal responsibility for planting a message in the Facebook ecosystem that may be palatable to some users and poisonous to others.


Brooks Fuller is a Roy H. Park Fellow and Ph.D Student at the UNC School of Journalism and Mass Communication. Follow him on Twitter at @itsPBrooks


EU Holds News Website Liable for Anonymous Comments

Screen Shot 2013-10-14 at 3.10.14 PMLast week, the European Union held an Estonian news website liable for anonymous comments posted by third parties on its site.

The EU case concerned a 2006 article published on the Estonian news site Delfi. The article was about changes to a Northern Europe ferry company’s travel routes. Because the route alterations would cause delay and make traveling more expensive, a number of angry commentators left “highly threatening or threatening posts” in response to the article.

The owner of the ferry company sued Delfi for defamation and was awarded €320, or $433 in USD. Delfi, arguing that it was not responsible for the comments, appealed to the EU.

The EU recently upheld the Estonian court’s judgment, holding that the website’s freedom of expression rights, governed by Article 10 of the European Convention on Human Rights, were not violated by the ruling. The EU court explained that freedom of expression rights may be interfered in order to protect an individual’s reputation so long as the intervention is “proportionate to the circumstances.”

In analyzing whether intervention is proportionate to the circumstances, the EU analyzed four issues: (1) the context of the posts; (2) steps taken to prevent publication of defamatory comments; (3) whether the authors of the posts could be made liable for their posts; and (4) the consequences of holding Delfi liable. In concluding its analysis, the EU court held that the lower court’s ruling was justified and proportionate to interference with Delfi’s Article 10 rights.

Samantha Scheller is a 2L at UNC Law.

(Image courtesy of Flickr user MPD01605 pursuant to a Creative Commons CC BY 2.0 license.)