True Threats and Free Speech

The extent to which the First Amendment protects threatening messages on Facebook and elsewhere will be the subject of a panel discussion at the UNC School of Law at noon on Monday, Jan. 26.

Co-sponsored by the UNC Center for Media Law and Policy, the discussion will focus on Elonis v. United States, a case recently argued before the U.S. Supreme Court. You can read more about the event here.

One of the panelists will be UNC School of Journalism and Mass Communication Ph.D. student Brooks Fuller, who recently had an article about threatening Internet messages and the First Amendment published in the Hastings Communication & Entertainment Law Journal. The citation is: P. Brooks Fuller, Evaluating Intent in True Threats Cases: The Importance of Context in Analyzing Threatening Internet Messages, 37 Hastings Comm. & Ent. L. J. 37 (2015).

From the abstract:

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 became whether the First Amendment, as interpreted by the Court in Virginia v. Black, requires a subjective intent standard to be read into all statutes that criminalize true threats, or whether the First Amendment only requires such a statute to require the prosecution to demonstrate that a reasonable person would consider the message to be a true threat. 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. In June 2014, the Supreme Court granted certiorari in Elonis v. United States, a true threats case involving posts on Facebook. The defendant, who posted violent messages in the form of rap lyrics and other pop culture references, argued that the trial courts misread Virginia v. Black and violated his First Amendment rights when it failed to instruct the jury to consider his subjective intent in addition to the objective standard. 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 true threats doctrine.


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