SCOTUS: Online Murder Threats Not Enough to Be Illegal

SCOTUS: Online Murder Threats Not Enough to Be Illegal June 2, 2015

The Supreme Court ruled on Monday that a bunch of online murder threats made by a man about his ex-wife were not illegal under federal law because it could not be proven that he would carry out such threats. The ruling was 7-2, with a very unusual lineup: The four liberal justices plus Kennedy, Roberts and Scalia in the majority, with Alito dissenting in part and Thomas dissenting completely.

The U.S. Supreme Court ruled in favor of a man who was convicted for making violent threats stylized as music lyrics against his wife on Facebook.

Monday’s decision reversed the 2010 conviction of Anthony Elonis, a Pennsylvania man who served a 44-month prison sentence for dozens of Facebook posts that discussed kidnapping and killing his estranged wife.

One post detailed how “someone” could get away with killing his wife with a mortar launcher, and another on his sister-in-law’s Facebook wall suggested his son dress up as “matricide” for Halloween using his mother’s head on a stick as a prop, according to court documents…

First Amendment issues have been central to the case, but the Court ultimately decided not to weigh in on them. The justices primarily addressed whether the Facebook posts were actual and credible threats complete with intent to carry them out. In a 7-2 ruling, the Court found Elonis’ posts may be reckless but alone, they aren’t enough to prove imminent physical harm.

The Court reasoned that upholding Elonis’ conviction would have broad implications, potentially criminalizing innocent behavior. “Negligence is not sufficient to support a conviction,” Chief Justice John Roberts wrote in the majority Court opinion. The statute does not specify the mental state one must have for threatening speech to be criminal, the opinion states, and solely relying on an individual’s perception of harmful intent isn’t enough to constitute a threat.

“Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person,” Roberts wrote, and “whether a ‘reasonable person’ regards the communication as a threat — regardless of what the defendant thinks — ‘reduces culpability on the all-important element of the crime to negligence’…What [Elonis] thinks does matter.”

I don’t think I buy this. I’m virtually a free speech absolutist, but I think the act of making the threat, all by itself, should be criminal. Making such threats is terrorizing another human being, who has no way of knowing whether they intend to carry them out or not. If it can be shown that they have actually taken steps to carry out the threat — by procuring a weapon, for instance, or hiring a hitman — then this should make it an additional crime, but the threat itself should be criminal as well.

I do think there should be fairly high standards of what constitutes a “true threat” (legal term of art alert). “I wish this person would die” is not, in my view, a true threat. But if you read through some of the things he actually said here, there is no doubt that they were designed to terrorize his ex-wife. And that alone is enough to lock him up in my book. You can read the full ruling here.

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