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For Now, the Supreme Court Has Little to Say About the Issue of Online Harassment

The justices ruled today that Anthony Elonis shouldn't have been convicted for threatening his ex-wife on Facebook, but dodged larger questions about free speech online.

by Drew Millard
01 June 2015, 5:43pm

Illustration by Cel Willis.

In 2010, Anthony Elonis's life fell apart. His wife of seven years left him, and the Pennsylvania man changed his Facebook name to "Tone Dougie" on and began posting statuses containing violent language directed towards his ex. It would have been clear to anyone watching him on social media that he was spiraling; he got fired from his job at an amusement park for posting a picture of himself at the park with a knife to a female coworker's neck with the caption, "I wish."

His nasty posts about his former wife continued even after she got what amounted to a restraining order against him. He also appeared to muse about shooting up an elementary school, and when a female FBI agent came by to question him, he posted a status about slitting his throat. These were often formatted like rap lyrics, and he occasionally made references to the First Amendment. "Art is about pushing limits," he wrote at one point in yet another status in which he joked about threatening his wife. "I'm willing to go to jail for my Constitutional rights. Are you?"

That statement proved to be bizarrely prescient—he was arrested and sentenced to 44 months in prison for making threatening communications, but he appealed that verdict all the way to the Supreme Court, which on Monday decided 7-2 that his conviction should be overturned.

Elonis maintained that despite the ominous nature of the Facebook rantings, he never intended to actually harm anyone. The question before the court was whether his intent mattered more than whether a "reasonable person" would have viewed his posts as threats. It's the first time the court has considered what's known as the "true threat doctrine" (basically, the line that divides Constitutionally protected speech and nasty, no-good, illegal threats) when it comes to social media.

The ruling was of particular interest to free speech advocates because of its implications. One on side, online threats may very well hold as much weight as if they were delivered in another manner. If it's legal for someone like Elonis to say nasty things about his ex-wife like that, would that make it harder to protect people—particularly women—against vicious spam, taunts, and fake threats? On the other hand, Facebook is a public forum and Elonis did frame his messages as "rap lyrics"—doesn't that mean he was simply exercising his right to free speech, as ugly and hateful as that speech was?

As it turns out, the Supreme Court's decision won't end up moving the needle on the issue in either direction. Professor Clay Calvert, the director of the Marion B. Brechner First Amendment Project at the University of Florida (who filed a friend of the court brief regarding the case), told VICE over the phone, "Overall the decision is disappointing because the Supreme Court dodged the First Amendment completely."

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Rather than tackle the issue head-on, Calvert explained, the Supreme Court adhered to the "doctrine of Constitutional Avoidance." He told VICE, "It completely ducked the First Amendment Issue and only addressed a very narrow statutory question about whether or not the court gave (the jury) the right instructions." In other words, the Court ruled that the jury in Elonis's trial had been incorrectly instructed to convict him on the assumption that a reasonable person would have felt threatened by Elonis's Facebook statuses, and not if Elonis had intended for the statuses to be taken as threats.

The court's opinion noted that Elonis's statuses were "often interspersed with disclaimers that the lyrics were 'fictitious,' with no intentional 'resemblance to real persons.'"

The decision provides little guidance with regards to the way online threats will be handled by law enforcement. "It's anticlimactic in a way," Calvert said. "The only relevance of this decision relates purely to how courts in the future are going to interpret this statute. Unfortunately, it doesn't affect the First Amendment rights, only this one statute under which Elonis was convicted." Calvert said that now, Elonis will be re-tried and a jury will be instructed to determine his intent with the statuses.

Defenders of free speech are pleased with the decision. In a press release, Steven R. Shapiro of the ACLU said:

Today's decision properly recognizes that the law has for centuries required the government to prove criminal intent before putting someone in jail. That principle is especially important when a prosecution is based on a defendant's words. The Internet does not change this long-standing rule. While today's decision insists on fairness, it is not a license to threaten, which remains illegal when properly proved.

Elonis himself doesn't appear to have issued a statement to anybody. In April, the Associated Press reports, he was arrested again, this time for hitting his girlfriend's mother in the head with a pot.

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