Facebook and other social media can be fun and informative. It can also be abused and abusive. Where is the line drawn? When is it protected free speech and when does it become a criminal threat?
The United States Supreme Court weighed in on that question in Elonis v United States (decided June 1, 2015). In this case, Mr. Elonis sent a series of posts to Facebook that most people would consider threatening. He posted self-styled rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. Clearly, Mr. Elonis was a nut job and was scaring everyone around him. He was arrested and charged with the federal crime of using a communication containing any threat . . . to injury the person or another. At trial the court told the jury that it should apply the “reasonable person” standard – i.e. would a reasonable person have felt that it was a threat.
The Supreme Court overturned the conviction. The Court ruled that in order to be convicted the government must prove that the sender intended the post to be taken as a threat or at the very least with the knowledge that the communication will be viewed as a threat. The Court in this 8-1 decision held that the sender had to have a mental state (the intention) that his words and/or images either be threatening or would be taken as threatening.
What does this mean for the rest of us? First, it’s my view that Facebook and other social media should not be used to air dirty laundry or to lash out at other people. These types of posts can be hurtful and, in my view, simply unnecessary and irresponsible. That being said, we enjoy free speech in this country and you can’t be criminally prosecuted unless you are intending to actually threaten someone or you know that your post would be taken as a threat. A bad joke, ill-advised comment or a post in just poor taste is not a crime, nor should it be. But posts that you know are threating or will be taken as a clear threat can land you in jail.
As Bill Murray said in Ground Hog Day (sort of), “Don’t post angry.”
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