"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. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave." -- Anthony Elonis in an October 2010 Facebook post
Pennsylvania man Anthony Elonis has historically enjoyed saying outrageous things on Facebook, such as how he would like to murder his estranged wife; shoot up an elementary school; sneak into an amusement park he was fired from to wreak havoc; slit the throats of a female co-worker and a female FBI agent; and use explosives on the state police, the sheriff's department, and any SWAT team that might come to his house. Elonis has never actually done any of these things, but he did spend the last three and a half years in prison for saying that he would. This week, the Supreme Court said it's going to re-examine the case, meaning we'll get a federal decision on whether threats made online need to be made seriously to send the threat-maker to jail, or just need to be taken seriously by a reasonable person threatened.
The line between funny and psychopathic can be hard to draw on Facebook. When Elonis's sister-in-law posted a Facebook status update about taking her niece and nephew Halloween costume shopping in October 2010, Elonis, then 27 years old, wrote a comment, "Tell [my son] he should dress up as matricide for Halloween. I don't know what his costume would entail though. Maybe [my ex-wife's] head on a stick?" That combined with the comment at the top of this post led his estranged wife to get a restraining order, but he continued to post nasty things, including a long diatribe about the fact "that it's illegal for [him] to say [he] want[s] to kill [his] wife," inspired word-for-word by this Whitest Kids U Know comedy skit about wanting to kill the president. He claimed he didn't mean any of the threats against his wife and others, that he was simply expressing himself with rap lyrics, in the style of Eminem -- who often sings about wife-murdering fantasies.
According to court files, the worst thing Elonis did in real life was to harass co-workers at Dorney Park & Wildwater Kingdom, where he used to work as a supervisor and technician; he took off his shirt in one co-worker's office and made "a minor female employee uncomfortable when he placed himself close to her and told her to stick out her tongue." After a Halloween scare night at the park, he posted a photo of himself holding a fake knife up to a co-worker's throat, with the caption, "I wish." After the amusement park fired him, it was unamused by his comments about sneaking in to mess with the place, and reported him to authorities. That plus the "funny" wife-murder jokes meant the FBI took note of the case and started following his Facebook page. An FBI agent saw him post this charming verse:
That's it, I've had about enough
I'm checking out and making a name for myself
Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a kindergarten class
The only question is . . . which one?
After an FBI agent visited his home, he posted that it "took all the strength he had" not to:
"Pull my knife, flick my wrist, and slit her throat
Leave her bleedin' from her jugular in the arms of her partner
[laughter]
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus' waitin' for y'all to handcuff me and pat me down
Touch the detonator in my pocket and we're all goin'
[BOOM!]
There was no "[laughter]" from the feds. They charged him. In 2011, Elonis was convicted of violating a federal law that forbids "transmitting in interstate commerce" (a.k.a. the Internet) a threat of injury or violence. He faced up to 20 years according to the Philadelphia Inquirer; he got 44 months. The appeals courts for the Third Circuit turned a deaf ear on his "I was just rapping to my Facebook friends" argument, deciding that it didn't matter whether he really meant his postings as threats, it only mattered if a reasonable person would think they were threatening. In a petition to the Supreme Court, Elonis's lawyers argued that his speech was taken out of context -- disregarding Elonis's 'artistic stylings' -- and that he wasn't "tagging" his wife, co-workers, or the FBI on Facebook when threatening them, thus not directly threatening them.
"To make a true threat, you don’t need to ever actually carry it out. You just need to terrify someone," argues University of Maryland professor (and Forbes contributor) Danielle Citron, author of the forthcoming book Hate Crimes in Cyberspace. Citron says there's been confusion among lower courts about the last Supreme Court case to tackle this issue, Virginia. vs. Black in 2003, which concerned the threat expressed through cross-burning. The Court decided that cross-burning at a Ku Klux Klan rally was okay as political speech, but that burning a cross in a neighbor's yard was a form of "virulent intimidation" that could constitute a criminal threat. "The question before the Court now is whether it only matters how it was interpreted or how it was meant," says Citron. Her fear if the case is overturned is that the takeaway will be that threats made on social media don't matter.
Citron was surprised that the Court took this case and not a petition last year from a dad who went to prison for posting a YouTube video of him singing a song about wanting to kill the family court judge who was going to take his daughter away.
It could be recent events. Elliot Rodger, the 22-year-old who stabbed his roommates to death and shot University of Santa Barbara students before killing himself last month, had left threatening messages on YouTube and online forums that had sent police to his house. Jerad and Amanda Miller, a married couple who recently killed three people in Las Vegas, including two police officers, before killing themselves, left ominous comments on Facebook in the days before the events.
"There is a lot of fear right now about threats made online," says Hanni Fakhoury, a lawyer at the Electronic Frontier Foundation, a digital civil liberties non-profit. "But it seems like we've elevated the Second Amendment above the First Amendment."
Rodger was receiving mental health treatment, but was still able to purchase weapons. Fakhoury says threats made online should be where police investigations start, not where prosecutions start.
"We’ve tolerated stupid speech a long time in this country, and we shouldn’t let the Internet shake that balance," says Fakhoury. "We need a holistic approach to problems, not just, 'If you say a threat on the Internet, you’re going to jail.'"
Fakhoury thinks threats should only be criminal if there's proof that the person making the threat intends to act on it. He points to a Ninth Circuit ruling from last year in U.S. vs. Bagdasarian in which the court overturned the conviction of a guy who threatened to shoot President Obama in a comment on a Yahoo Finance forum. "He was drunk and venting," says Fakhoury. "The Ninth Circuit said his subjective mind frame mattered, and prosecutors couldn’t prove he meant it. We like that rule."
"It should matter whether you mean it or not," Fakhoury continues. "In the Internet age, it’s even more important because it’s so easy to say stupid stuff online. We don't want to lose our right to free speech."
It's an important case. Whether you have the right to write violent riffs about your significant other, co-workers, boss and/or FBI agents hangs in the balance. While it's not just about threats made online, the role of technology is key, as it's easier than ever to make threats against people, and have them captured as evidence. And harder than ever to discern the context of those comments.
