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The Supreme Court Just Made Online Threats More Difficult To Prosecute

Courts should consider not only whether an online threat inspires fear, but the intentions of its author, a new ruling says.

The Supreme Court Just Made Online Threats More Difficult To Prosecute
[Photo: Flickr users Tim Sackton, User:Colin]

“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

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If this were the way your estranged husband referred to you on Facebook, might that make you feel reasonably afraid for your safety?

Thanks to a Supreme Court ruling on Monday, the answer to that question doesn’t matter quite as much as it did yesterday. The ruling voided the conviction of Anthony Elonis, the author of the above lines, who had previously been sentenced to more than three years in prision for writing rants on Facebook in which he threatened to harm and kill his now ex-wife, a kindergarten class and law enforcement officers.

Making “true threats” is illegal. Making threats in jest is not. To distinguish whether Elonis’s threats were true threats, or if they were made, as he argued, merely as part of an artistic expression in his rap lyrics, the Pennsylvania federal district court that convicted him instructed jurors to use a “reasonable person” standard. That means they asked the question, “if a reasonable person were to recieve this threat, would they be afraid?”

In today’s ruling, the Supreme Court concluded (while effectively avoiding difficult first ammendment questions the case brought up) that the “reasonable person” question is not good enough to base convictions upon. Instead, Chief Justice Roberts wrote in the 7-2 decision, courts need to also take into account the intentions of the person making the threat. A conviction can be supported only “if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.”

Earlier this year, Danielle Citron, a law professor at the University of Maryland who has studied online harassment since 2007, told me she was optimistic that this outcome in the case would not unreasonably inhibit courts from convicting people who made online threats. “In most cases where you have threats, there is probably pretty good evidence that the defendant intended the threat,” she said. However, she said that prosecuting threats made online “will definitely be harder.”

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About the author

Sarah Kessler is a senior writer at Fast Company, where she writes about the on-demand/gig/sharing "economies" and the future of work.

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