The Cautionary Instruction: Supreme Court takes up Facebook threats

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 20, 2014
The U.S. Supreme Court has agreed to hear the case of Anthony D. Elonis of Berks County, Pennsylvania who was sentenced to nearly four years in federal prison for posting ominous photos and making violent rants on his Facebook page against former co-workers, law enforcement officials and his estranged wife.
The case dates back to 2010, when Elonis' wife left him after a seven-year marriage and took their two children. Apparently despondent , he lost his job at an Allentown amusement park and began a series of dark postings, often in the form of rap lyrics. In his Facebook profile, he said the rants were therapeutic and disclaimed any "true threat."
Columnist Dahlia Lithwick wrote this week, “This case is not only crucially important in that it will force the court to clarify its own "true threats" doctrine and finally apply it to social media to determine whether -- as Justice Stephen Breyer has suggested -- the whole world is a crowded theater. Breyer was referring to Justice Oliver Wendell Holmes’ First Amendment decision in Schenck v. United States.
For more than 40 years, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment. But the court has cautioned that laws prohibiting threats must not infringe on constitutionally protected speech. That includes "political hyperbole" or "unpleasantly sharp attacks" that fall shy of true threats.
The federal statute targeting threats of violence is likely to be used more often in the coming years "as our speech increasingly migrates from in-person and traditional handwritten communication to digital devices and the Internet," said Clay Calvert, a law professor at the University of Florida.
The court's precedent for such cases is now 11 years old. In 2003, the Supreme Court ruled in Virginia v. Black [http://www.oyez.org/cases/2000-2009/2002/2002_01_1107] that a state law equating cross-burning with intimidation went too far, reasoning that not all cross-burning was meant as a threat. Since then, lower state and federal courts have split on what constitutes a threat -- the perpetrator's subjective intent to threaten, or anyone else's objective interpretation.
"There is a lot of fear right now about threats made online,” says Hanni Fakhoury, a lawyer at the Electronic Frontier Foundation, a digital civil liberties non-profit. “But it seems like we’ve elevated the Second Amendment above the First Amendment." "We’ve tolerated stupid speech a long time in this country, and we shouldn’t let the Internet shake that balance,” says Fakhoury. “We need a holistic approach to problems, not just, ‘If you say a threat on the Internet, you’re going to jail.'"

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Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.