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Are Online Rants Criminal Threats? Supreme Court to Weigh In

By Daniel Taylor, Esq. on June 17, 2014 | Last updated on March 21, 2019

When does an online rant cross the line from free speech to being a criminal threat?

That's the issue the nation's highest court will soon be taking up. As reported by SCOTUSblog, the U.S. Supreme Court has agreed to hear an appeal of a lower court's ruling in Elonis v. United States, in which a disgruntled ex-husband's angry Facebook posts got him arrested on federal charges.

What will the Supreme Court be looking at in this case?

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'Hurry Up and Die'

As detailed in the 3rd U.S. Circuit Court of Appeal's opinion, Anthony Elonis and his wife of seven years separated in 2010. Soon after, Elonis began posting statements about his wife on Facebook.

After one particular post by Elonis -- which stated in part: "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..." -- his ex-wife obtained a protective order.

Elonis, however, continued to post threats on Facebook both against his wife and against his former employer, a local amusement park which had fired him not long after his wife had moved out. The latter drew the attention of the FBI; officers arrested him and charged him with five counts of violating 18 U.S.C. Section 875 by using interstate communications to threaten harm to an individual. Elonis was convicted on four of the counts and sentenced to 44 months in prison. He appealed his conviction to the 3rd Circuit, but his conviction was upheld.

What Makes a True Threat?

In his appeal, Elonis argued that the District Court used the incorrect standard in determining his Facebook posts were "true threats" and therefore not protected by the First Amendment.

Elonis' argument was that the U.S. Supreme Court's ruling in Virginia v. Black required that a "true threat" must be one that a reasonable speaker would foresee being interpreted as a threat, and that was subjectively intended by the speaker to be a threat. In other words: A true threat has to sound like a threat, and be meant as a threat.

The 3rd Circuit disagreed, siding with previous circuit court decisions upholding the so-called "objective standard." However, as both the 9th U.S. Circuit Court of Appeals and several state supreme courts have found the "subjective standard" that Elonis argued for in his case to be the applicable standard, the U.S. Supreme Court has apparently decided to weigh in and clarify the rule.

The case is set to be heard during the Court's next term, which begins in October.

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