January 12, 2015 By Wallin & Klarich

Recently, the United States Supreme Court heard oral argument in the first case that seeks to limit an individual’s right to free speech on social media. The case, Elonis v. United States, concerns Anthony Elonis, an Allentown, Pennsylvania man.1

Social Media ThreatsElonis’s wife left him in 2010, taking their two children. Following her departure, Elonis allegedly made death threats to his estranged wife, local law enforcement officers, an FBI agent, and a kindergarten class in the form of multiple public posts on Facebook. He was charged with five counts of insterstate communication of illegal threats.2

The federal law under 18 U.S.C. Section 875 makes it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.”

Elonis was found guilty and was sentenced to 44 months in prison. In his appeal, Elonis’ counsel argued that he did not have the intent to threaten all the individuals that he named, and therefore the First Amendment gave him the freedom to make the statements.

Are Threats Made on Social Media a Crime?

The U.S. Supreme Court justices are struggling to determine whether they must only find a reasonable person would interpret the offensive language as a threat. The federal law under which Elonis was charged is vague. It contains more leeway for a court to find the defendant guilty than many state laws.

In California, the issue of whether a threat made through social media has already been addressed by PC 422(a).

This statute declares that a person may be punished if he or she willfully threatens to commit a crime that could result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if the perpetrator has no intent of carrying out the threat.3 The threat must be so unequivocal, unconditional, immediate, and specific so as to convey to the threatened person “a gravity of purpose and an immediate prospect of execution of the threat.

” It must also cause the threatened person to reasonably be in sustained fear for his or her own safety or for his or her immediate family’s safety.

A violation of PC Section 422(a) is a “wobbler,” meaning that it can be charged as a felony or misdemeanor. How the offense is charged depends on the facts of your case and your prior criminal history. When the offense is charged as a misdemeanor, the punishment is up to one year in jail. When the offense is charged as a felony, the punishment is up to three years in prison.

Should Threats Made on Social Media Be Punished by Prison Time?

criminal threats onlineThreats made on social media should not be punished by a term in jail or prison if the threat is not serious and is not prefaced by a history of verbal altercations or violence between the parties. There should be exceptions made if the defendant has a history of mental health issues and poses a real danger to the threatened individual.

Threats that take the form of song lyrics, as Elonis’s did, should be treated with special care by prosecutors. Before pressing charges, prosecutors should examine the circumstances of the case closely to determine whether the posts are meant to be actual threats. In this case, Elonis said explicitly on the Facebook page that he was only exercising his First Amendment rights. He also linked to other similar statements against individuals, such as a comedy sketch about the nature of threats, and rap songs about killing an ex-wife by the artist Eminem.

In this case, the context of Elonis’s statements should have caused the prosecutor to give more weight to the idea that Elonis was not making true threats. This is not to say that Elonis should not have been punished at all. Elonis put up the posts after his ex-wife had obtained a restraining order that barred Elonis from threatening, harassing, or contacting her. It would have been more appropriate in this case if the prosecutor had charged Elonis with violating the existing restraining order under state law. The complex freedom of speech issues could have been avoided, and Elonis would have been sufficiently restrained in county jail.

What Do You Think About This Court Ruling?

Do you think threats made on social media deserve to be punished as harshly as oral criminal threats? Have you encountered threats on social media? Please continue the discussion in the comments below.

1. [Elonis v. United States, 13-983 U.S. ___ (2015)]
2. [18 U.S.C. 875(c)]
3. [PC 422(a)]

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