U.S. Supreme Court

Chemerinsky: What is a ‘true threat’ on Facebook? SCOTUS to decide

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Erwin Chemerinsky

The inevitable has happened: A case involving Facebook has made it to the U.S. Supreme Court. Elonis v. United States presents an issue that has divided lower courts: What is a “true threat,” and does it amount to speech that is unprotected by the First Amendment? The case will be argued Monday, Dec. 1.

The Supreme Court long has said that “true threats” may be constitutionally punished, but it has not attempted to define the phrase. Social media, like Facebook, have caused the issue to arise with greater frequency. Ultimately, the issue in Elonis is whether a person can be convicted of making true threats if a reasonable person would have perceived the statements as threatening, or whether there must be proof that the speaker subjectively intended to threaten others.


The court is likely to focus a great deal on the facts. Anthony Elonis used Facebook to make angry statements after his wife, Tara, left with their two children. He was fired from his job in an amusement park after posting on Facebook a picture of a knife being held against the throat of a woman who had accused him of sexual harassment. After his firing, he posted messages that said that he still had keys and could come do violence at the amusement park where he had worked.

Many of his Facebook messages were directed to Tara. For example, he wrote: “If I only knew then what I know now … I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.” He posted rap lyrics that similarly expressed the desire for harm to Tara. One posting said: “So hurry up and die, bitch, so I can forgive you.” Another said: “Revenge is a dish that is best served cold with a delicious side of psychological torture.”

Tara went to court and got a protection from abuse order against Anthony, but he continued to post angry messages, often in rap lyrics, directed at Tara. She testified that some of these caused her to be “extremely afraid for [her] life.”

Elonis also posted on Facebook that he was planning to go to a kindergarten class and engage in a mass shooting: “I’m checking out and making a name for myself. Enough elementary schools in a 10-mile radius to initiate the most heinous school shooting ever imagined. … The only question is which one?” An FBI agent investigated, and Elonis then posted messages that expressed a desire to do violence to her.

Elonis was indicated for violating 18 U.S.C. §875(c), which prohibits transmitting “in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” Elonis moved to dismiss the indictment based on the First Amendment, and argued that there needed to be proof that he had a subjective intention to threaten.

The judge, however, rejected this argument and instructed the jury to use an objective standard: “A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” The jury was instructed that it is “an objective test which focuses on what a reasonable person in the position of the defendant as the maker of the statement would expect to be the reaction to the statements.”

Elonis was convicted and sentenced to 44 months in prison followed by three years of supervised release. The Philadelphia-based 3rd U.S. Circuit Court of Appeals affirmed.

The issues and the law

There are two issues before the Supreme Court. The statutory question involves whether 18 U.S.C. §875(c) requires proof of a subjective intent to threaten. The constitutional issue is whether the First Amendment requires this in order for a person to be convicted of making a “true threat.”

As for the former, Elonis contends that the word “threat” connotes subjective intent and that the presumption is that Congress assumed that this would be the standard. By contrast, the United States argues that the statute embodies the constitutional standard for a true threat and that nothing in the law requires proof of subjective intent. The government makes its own argument based on the meaning of “threat,” saying that the “word ‘threat’ means that conviction requires a statement that to a reasonable person communicates an intent to do harm.”

Ultimately, both the statutory and constitutional arguments turn on whether proof of subjective intention to threaten is necessary in order for it to be a threat that can be punished. Prior Supreme Court decisions give little guidance as to this question. In Watts v. United States, decided in 1969, the court upheld the constitutionality of a law that makes it a crime to threaten the president, and said that “true threats” may be punished. But the court stressed that a true threat does not include statements that would reasonably be understood as jest, hyperbole or exaggerated vehemence.

In Virginia v. Black, decided in 2003, the court held that a Virginia law prohibiting cross burning could be constitutionally applied only when there is proof of intent to threaten. The court reiterated that true threats are not protected by the First Amendment and emphasized that there is a compelling interest in protecting “‘individuals from the fear of violence’ and ‘from the disruption that fear engenders.’”

Elonis argues that the objective reasonable person test criminalizes negligent speech, something strongly disfavored under the First Amendment. Elonis and the amici supporting him argue that the objective approach to defining a true threat risks chilling artistic expression, especially in rap lyrics. The United States contends that speech that reasonably causes a person to fear for his or her safety is not entitled to First Amendment protection, and that objective standards are used in other areas of First Amendment law, such as in determining what is obscenity or false advertising.


In many ways, this is a classic First Amendment case presenting competing interests, albeit in the context of relatively new social media. Ultimately, the court has to balance the desire to protect speech and keep it from being chilled with the desire to protect people from feeling threatened. A subjective intent standard is more protective of speech, because it is harder for the government to prove the speaker’s subjective intent than it is to prove that the speech would be perceived as threatening by the reasonable person. By contrast, an objective standard would do more to deter and convict those causing others to feel threatened.

The social media context will be important as well. Thus far, the court has been very protective of speech over the Internet, recognizing it as a uniquely important forum for expression. But the court also is likely to be concerned about the ease of threats over social media and the difficulty of providing subjective intent for speech in that context.

Even if the court reverses the lower courts and holds that a subjective standard is required, that does not mean that Elonis will necessarily escape punishment. The justices likely will believe that Elonis’ Facebook postings were a true threat no matter what standard is used. But it is not clear whether that will make the justices more likely to affirm or to reverse.

No matter what the court decides, it will have a great effect in the increasing number of cases that raise the question: What is a “true threat”?

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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