The Supreme Court overturned a man's conviction for making violent threats on Facebook. Anthony Douglas Elonis had been found guilty for posting about killing his ex-wife, law enforcement officials, and even a kindergarten class under a federal threat statute.
Elonis had defended the posts, saying they were similar to rap lyrics and they were not intended as threats. It was the intent portion of the statute that the Court had a problem with.
Negligence Is Not a Crime
Under the previous standard, prosecutors only needed to show that a reasonable person could find the posts threatening in order to gain a conviction. The Court said that standard is too low.
Chief Justice John G. Roberts Jr. wrote that "negligence is not sufficient to support a conviction. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state." And while the Court did not specifically say what the required mental state must be, it did indicate that the defendant must either know he or she was making a threat, or know that it would be taken as a threat.
Without a new standard for online speech, Elonis's case will return to the Third Circuit, where the lower federal court will decide whether he needs a whole new trial. Until then, the line between true threats and hyperbole or jokes will remain a bit blurred.
While the First Amendment does protect freedom of speech, that doesn't protect all speech in all contexts. You can't yell "Fire!" in a crowded theater. You can't cyberbully. You can't threaten the President. And you can't encourage your Facebook friends to "shoot at every white cop in the nation starting NOW."
Whether you can direct "There¹s one way to love you but a thousand ways to kill you" to your ex-wife or note that there are "Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined," remains to be seen. But if you're wondering whether the First Amendment protects what you're about to post on Facebook, maybe think twice about posting it at all.