When Are Social Media Threats Criminal Acts?

July 24th, 2015 by Attorney Dan Carman

Social Media Threats

Regulating the First Amendment’s guarantee of free speech on social media platforms has proven to be tricky. For example, when does communication cross the line into being an illegal threat? A recent case, Elonis v. U.S., pitted law-enforcement and victims’ rights groups against free-speech advocates and left the Supreme Court searching for a middle ground that would protect free speech yet allow prosecutors to target people who make “true threats.”

Decided earlier this month, the case examined the unclear rules regarding conduct on the Internet. A direct ruling on the free-speech issue was sidestepped, and the case instead focused on the intent of the person who posted the words. The Supreme Court ruling made it harder for prosecutors to convict those who make violent statements on social media, saying it is not enough that an ordinary person would find the rants threatening. Instead, the intent or perception of the message sender is the most important factor.

An aspiring rapper, Douglas Elonis used violent language in Facebook posts that appeared to threaten his coworkers, an elementary school class, an FBI agent and the mother of his children. He did so under an alter ego and included disclaimers that the violent rap lyrics were “fictitious,” with no intentional resemblance to real people. Nonetheless, he was convicted of violating a federal law barring interstate communications that contain “any threat to injure the person of another.” Elonis’s conviction was upheld on appeal and he served more than three years of a 44-month sentence before his release from prison.

Elonis’s attorney argued that prosecutors should have to show that someone accused of making threats intended to put the listener in fear, that merely being reckless with comments on Facebook or elsewhere shouldn’t be enough to make someone guilty. In reviewing the case, the Supreme Court reaffirmed a longstanding principle that a defendant generally has to have a blameworthy mental state in order to be found guilty of a crime. Because criminal law requires an awareness of guilt, it was necessary to evaluate Elonis’s intent in writing his posts rather than just consider how a hypothetical reasonable person might expect an audience to react.

Social media posts are only threats if the poster intended for them to be threats.

Although the Court made it clear that the government can still win a conviction by showing that the writer intended to hurt a specific individual, two concurring justices thought the opinion offered little in the way of specifics about the standard of guilt. One wrote that he would have held a defendant can be convicted “if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat.” As online communication becomes more commonplace, the applicability and interpretation of the law are still evolving.

If you have been charged with a crime or have questions about how the law might apply to your situation, discuss it with one of the attorneys at the Lexington, KY-based Carman Law Firm. As criminal defense attorneys with years of experience, we offer thorough, experienced representation. Call today at (859) 685-1055 or fill out this online contact form to find out how we can help you.