The Supreme Court will decide if, when considering free speech rights of people who use threatening language on Facebook posts and other electronic media, you must also look at the intent of the person posting the threatening language.
In Pennsylvania Anthony Elois has served nearly four years in federal prison for violent posts directed toward his estranged wife, as well as law enforcement officials and even former co-workers.
He claims says he never meant to carry out any threats., but that he was depressed. He further explains that he made the online posts in the form of rap lyrics as a way of venting his frustration after his wife left him.
The real issue: objective intent vs. subjective intent.
SCOTUS will consider whether conviction of threatening another person under federal law “requires proof of the defendant’s subjective intent to threaten.”
At his trial, the jury was instructed to use an objective standard, and could find Elonis guilty if an objective person could consider his posts to be threatening.
In the appeal to the Supreme Court Elonis argues for use of a subjective standard, considering whether Elonis meant the messages to be understood as threats.
The argument for using a subjective standard seems applicable because of the type of communication involved here. Online postings are impersonal, and can very often be misinterpreted. How many times have you posted something and people took it the wrong way? Further, comments intended for a smaller audience can be viewed by others unfamiliar with the context and interpret the statements differently than was intended.
POTUS weighed in, claiming a subjective threat would undermine the purpose of the federal law prohibiting threats.
Let’s look at the Supreme Courts history in similar situations – the court has previously cautioned that laws prohibiting threats must not infringe on constitutionally protected speech. Examples include “political hyperbole” or “sharp attacks” that are not all-out-threats.