The last time the high court scrutinized the “true threat” doctrine was in 2003, when it found that a Virginia law banning cross burning was unconstitutional because a “true threat” requires the speaker to communicate an intent to commit violence. (Justice Clarence Thomas was the lone dissenter.) In that case, the court defined true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Elonis read the Virginia case to say that the definition of true threats means that the speaker must truly intend to threaten the victim.
Courts across the country have been split on whether the subjective intent of the speaker or the objective assessment of the listener is what matters when it comes to discerning a true threat. The 3rd Circuit Court of Appeals, looking at the facts in Elonis’ case, held that if a statement causes a reasonable person to fear for her safety, that’s a true threat. Most other courts agree on that standard: a reasonable person’s objective interpretation controls the outcome. The 9th Circuit on the other hand has taken the position that the speaker must have intended to communicate threat and “intend for his language to threaten the victim.” The Justice Department supports the 3rd Circuit’s test, arguing that the law must not only prevent real violence but also deter real fear.
One of the confounding factors here is that the court hasn’t yet looked at the question of true threats through the lens of modern technology. Those urging the court to take the case argued that speeches at rallies and even cross burnings are fundamentally different from YouTube postings or tweets. Elonis claims that you can’t use an objective listener standard when you are dealing with the interpersonal and context-free conversation that takes place in the Wild West of social media. Elonis’ petition for Supreme Court review argues that “modern media allow personal reflections intended for a small audience (or no audience) to be viewed widely by people who are unfamiliar with the context in which the statements were made and thus who may interpret the statements much differently than the speakers intended.”
In a column about the high stakes in this case, three law professors writing in support of Elonis explain that “information posted to social media sites is often disseminated and displayed in ways that users do not control or even understand, profoundly complicating attempts to determine a person’s intent in posting something or a ‘reasonable’ person’s interpretation of it. Context becomes further complicated when a so-called threat is a lyric from a musical genre that often privileges highly exaggerated, confrontational and violent rhetoric.”
Robert Richards, director of the Pennsylvania Center for the First Amendment at Penn State, argues that on the Internet, the recipient is not the issue anymore; that, unlike a letter, posts on social media may simply be left for anyone to find. In an interview with a Pennsylvania paper, Richards explained that people use social media “to say all kinds of things but they may not be directing it to a particular individual. They’re just venting their feelings.”
This case is not only crucially important in that it will force the court to clarify its own “true threats” doctrine and finally apply it to social media to determine whether—as Justice Stephen Breyer has suggested—the whole world is a crowded theater. But perhaps it’s even more important in pushing the conversation about law enforcement, prosecution, and threats to include a much more sophisticated understanding of the ways in which the Internet is not just a rally or a letter. As Amanda Hess has explained so powerfully, women experience threats on social media in ways that can have crippling economic and psychological effects. At the margins, this is a case about the line between first amendment performance art, fantasy violence, real threats—and real fear. In a world in which men and women find it nearly impossible to agree on what’s an idle threat and what’s a legitimate one, it’s also a case about where that line lies, or whether there can be one.
Disclosure: I serve on the board of the Thomas Jefferson Center for the Protection of Free Expression, which is among Elonis’ lawyers.