First-time Supreme Court case could change threshold for online threats

The U.S. Supreme Court will hear arguments Dec. 1 on whether threatening Facebook posts constitute free speech, in what promises to be its first examination on First Amendment implications on social media, according to The Washington Post.

When domestic abuse victim Tara Elonis obtained a protective order against her estranged husband, Anthony Elonis, he vented his anger on Facebook, saying: “Fold up your PFA [protection-from-abuse order] and put it in your pocket. Is it thick enough to stop a bullet?”


Elonis did not deny posting the statement, but he claimed that he was simply blowing off steam, which his attorneys described as “therapeutic efforts to address traumatic events,” according to The Post. What matters is not his intent, Elonis’ team argued, but whether “any reasonable person targeted in the rants would regard them as menacing warnings.” Apparently several people did, including his former co-workers, an FBI agent and his soon-to-be ex-wife.

Elonis was fired from his job after several co-workers interpreted one of his Facebook posts as threatening to them, The Post reported.

In other Facebook posts, Elonis suggested his son dress as “Matricide” for Halloween, with Tara’s “head on a stick” as a prop, and considered making a name for himself by “shooting up an elementary school,” noting that there were so many nearby to choose from. It was his comment that “hell hath no fury like a crazy man in a kindergarten class” that brought in the FBI.

In a jury trial, domestic violence experts testified that social media has become a “powerful tool for dispensing threats.” The jury convicted Elonis of communicating threats, and he served more than three years of a 44-month prison sentence after an appellate court upheld the conviction, according to The Post.

The question for the Supreme Court is whether such statements constitute an illegal threat or whether they are a free expression of thought, according to The Post.

The video below, posted by CBS News last summer, offers some perspective on how the arguments will take shape:



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