Free Speech on the Internet

Anthony Elonis - 18 U.S.C. §875(c) Case Overview In this case, Anthony D. Elonis was convicted for publishing a series of Facebook posts describing committing acts of violence towards various people in violation of § 875(c) (Wald and Milazzo).

In May 2010, Anthony Elonis's wife moved out of their home with their two young children which consequently angered Elonis who then began posting on his Facebook page descriptions of how he wanted to kill his wife -- one such post, referring to his wife, stated: "If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder" (Larkin and Richardson).

In October 2010, after having lost his job arguably due to another Facebook posting, Elonis's musings became darker and more vitriolic (Lempert). Because of these and other statements, Elonis's wife was able to obtain a Protection from Abuse order against Elonis on November 4, 2010. The FBI began to monitor Elonis's Facebook posts after Dorney Park also claimed that Elonis had posted threats against their employees on the site.

During the investigation, FBI Agents questioned Elonis at his home about his Facebook posts and after they left, Elonis posted the following on his Facebook page (Larkin and Richardson): "So the next time you knock, you best be serving a warrant And bring yo' SWAT and an explosives expert while you're at it Cause little did y'all know, I was strapped wit' a bomb Why do you think it took me so long to get dressed with no shoes on? I was jus' waitin' for y'all to handcuff me and pat me down Touch the detonator in my pocket and we're all goin -- BOOM!'" The FBI used these statements to officially charge Elonis with the provisions of interstate commerce and the communication of a threat to injure.

It is a federal crime to "transmit [] in interstate or foreign commerce any communication containing any threat to injure the person of another," 18 U.S.C. § 875(c) and numerous states have adopted analogous crimes (Wald and Milazzo). Case Issues The internet has revolutionized the way that people communicate and share their thoughts and opinions with others. It provides new mediums in which people can exercise their rights to free speech. However, in some cases free speech has its limits.

While the internet can be a remarkable and valuable tool for purposes of exchanging artistic, political, religious and educational ideas that are protected by the First Amendment, it can also be a dangerous tool in the hands of those who seek to cause fear in others through threats and intimidation (Memeger). Facebook, Twitter, MySpace, YouTube, and other social media sites can also be used as medium to threaten, harass, and stalk other citizens. Determining what constitutes a threat can be a complex and subjective exercise however.

Many analysts liken the Facebook posts to other violent expressions such as rap music. Such music notoriously use threatening and violent language but are commonly allowed because they are considered an "art form" and is protected under the first amendment. In fact, Elonis stated that he was inspired by rap music and some of his posts mirrored rap-like lyrics. "There's one way to love you but a thousand ways to kill you.

I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave." (Lithwick) Elonis and his defense team tried to argue that his postings were not a "true threat" and his comments were protected under the First Amendment. Elonis changed his Facebook name and did not tag his wife in the messages and thus she could not readily see them.

Moreover, the posts that formed the basis of the indictment followed earlier seemingly angry posts which Elonis had characterized as rap lyrics using "crude, spontaneous and emotional language expressing frustration" and explained that he wrote that his postings were "for me. My writing is therapeutic"; this was consistent with his having said that the writings, "help[ed] me deal with the pain." He had also said in earlier posts, "I ain't a legitimate threat," and described himself as "an aspiring rapper" (Lempert).

Legal Issues The legal issues in the case are subject to the interpretation of 18 U.S.C. §875(c) which states: (c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both (Curtis). In the UNITED STATES of America v. Jean Pierre DeANDINO, (1992) the court determined that the three essential elements under 18 U.S.C.

875(c) were (Curtis): (1) A transmission in interstate (or foreign) commerce; (2) A communication containing a threat; and (3) The threat must be a threat to injure the person of another. The definition of a threat in some contexts is dependent upon whether a "reasonable" person would perceive the message as a threat and believed the person who sent it might be serious about that statement and "intended" to do harm.

However, under consideration of a "specific intent" a prosecutor does not have to prove that the message was perceived as a threat, only which the person making the threat intended to threaten the recipient. Elonis argued that conviction should depend on proof that speaker intended the speech as a threat, but prosecutors say the test is whether a reasonable would consider them as a threat (Shilling).

Free speech is broadly limited to the intention of an individual to actual perform harm and even speech that is explicitly threatening may perhaps not count as a threat if it is uttered in a context in which the nature of the speaker or the circumstances make it highly unlikely that the threat could ever be carried out (Maitra and McGowan). However, under the interstate commerce act, the freedom of speech can take a more limited interpretation than otherwise.

The more limited approach to the freedoms of expression were previously used to address threats of Communists and others who posed a continuing threat to the public interest and cause substantial harm to interstate commerce (Eastland). This precedent gives the court more authority to address threatening speech intended to intimidate than in other forms of expression. Other cases have had similar outcomes including defendants in the American Coalition of Life Advocates (ACLA) who posted names and addresses of abortion doctors -- some of which were murdered.

The court ruled that the First Amendment's protection of the group was determined not to apply.