When Does Social Media Chatter Become Criminal?
Social media combines the power of print with the immediacy of conversation. While social media frequently enriches our lives, it also enables behavior such as threats of violence. Should we interpret a social media threat the same as a threat of physical violence communicated to a potential victim’s face? Or are such violent statements just inconsequential chatter? A pending Supreme Court case, Elonis v. United States, should shed some light on the tensions between free expression and criminal threats on social media.
Should we interpret a social media threat the same as a threat of physical violence communicated to a potential victim’s face?
About the Case
Anthony Elonis’ life hit a rough stretch. His wife left him and got a restraining order, and she took their children with her. Elonis’ Facebook posts were troubling and he was even fired because of the posts. Law enforcement also took notice of his Facebook posts. They visited him at his home and Elonis was interviewed by an FBI agent. Throughout this time, he chronicled his life on Facebook, including several statements that expressed or implied his desire to commit violence. Elonis claimed he was an amateur rapper inspired by Eminem, and these “threats” weren’t serious; they were just rap lyrics. Nevertheless, the people mentioned as targets felt threatened.
A jury convicted Elonis of violating 18 U.S.C. § 875(c), which criminalizes the interstate transmission of “any communication containing…any threat to injure the person of another.” The jury was instructed that it could convict Elonis if a reasonable reader would “objectively” interpret his Facebook posts as threats; even if Elonis subjectively never intended to make a threat or hurt anyone. Elonis was sentenced to 44 months of prison plus three years of probation.
The Supreme Court is being asked to decide whether a potentially threatening statement should be interpreted “objectively” (what the listener reasonably perceived) or “subjectively” (what the speaker meant to say). While this legal question may sound arcane, it’s a vital one to social media. If the legal test is subjective, social media posters can freely discuss violence towards others and then claim (possibly retrospectively) they didn’t intend to threaten. Thus, we’d anticipate many defendants will say they are just emulating rappers like Eminem, no matter how vicious or threatening their posts sound.
we’d anticipate many defendants will say they are just emulating rappers like Eminem, no matter how vicious or threatening their posts sound.
Still, the objective test has its own problems. First, to determine if a social media post communicated a threat to a reasonable person, we have to understand the post. The post may contain internal signals–an emoticon, an LOL, a Rickroll–that tell readers about the author’s true intent…but only if the readers recognize those signals, and sometimes signals are sufficiently obscure. Second, we have to contextualize the post by reviewing posts before or after the one in question. Even if a post in isolation might sound threatening, the surrounding posts may cause the post in question to take on a new meaning. Third, we have to know more about the likely readers. People in niche communities develop their own norms and language that outsiders may not understand. For example, if all of the readers are quite familiar with Eminem, they may understand a threatening-sounding lyric quotation in a way that anyone unfamiliar with those lyrics would miss.
These contextualization questions aren’t unique either to criminal threat prosecutions or to social media. Indeed, they are exactly the kinds of questions we ordinarily submit to juries composed of our peers. Nevertheless, having juries make these decisions isn’t ideal. Jury trials are expensive, time-consuming and sometimes hard to predict, especially when none of the jurors have first-hand experience with a relevant niche community. Thus, even if you’re confident that a post won’t be interpreted as a threat, you’ll still think twice about making a borderline post if your fate depends on prosecutorial discretion and an expensive and possibly dicey jury trial.
It bears noting that even if Elonis dodged a criminal threat conviction, his social media posts could still cost him his job, contribute to a restraining order, and alienate his family. In other words, even if we have the legal right to make edgy social media posts, we will remain accountable for our words in many other ways.
*A version of this article was originally published by Forbes on Dec. 1, 2014.