Drawing the Line

If you threaten someone online, even if you don't mean it, have you still broken the law? The Supreme Court wrestled with this complex question in the Anthony Elonis case.

In May of 2010, Anthony Elonis, a husband and father of two, was left reeling by the sudden departure of his wife Tara. His world rocked by the dissolution of his marriage, Elonis, who worked at an amusement park in Allentown, Pennsylvania, grappled with the raw emotions of rejection and abandonment. However, Mr. Elonis's feelings of betrayal and abandonment slowly transformed into pure anger.

In October 2010, Elonis posted this message on Facebook: "If I only knew then what I know now…I would have smothered your [Tara's] ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like rape and murder." Elonis’s posts grew increasingly specific and alarming. In one, he ranted: "There's one way to love ya but a thousand ways to kill ya. I'm not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts."

Tara Elonis got a protection order against Anthony On November 4, 2010. In a concerning turn of events, Tara's efforts for protection from her ex-husband seemed to backfire. Anthony's posts continued only three days later and took a more disturbing turn. He even posted a map of a proposed mortar assault on Tara's house, accompanied by a statement suggesting that he was willing to go to jail for his 'constitutional rights.'

Elonis's threatening behavior also extended to his co-workers at the amusement park. He posted a Halloween photo of himself posing with a fake knife at a co-worker's throat, with a caption that simply read: 'I wish.' At this point, the message was clear to those who saw it; Mr. Elonis must be taken seriously. The disturbing photos and messages were a reflection of his homicidal state of mind.

The Facebook post caught the eye of Elonis' boss, who swiftly fired him and alerted the FBI. The federal government wasted no time in bringing charges against Elonis under the law forbidding online threats, and the case went to trial in 2011. In a tense courtroom battle, the prosecution argued that Elonis' actions were a clear and present danger, while the defense argued that his words were simply a twisted form of artistic expression. Elonis was convicted and his fate hung in the balance.

Incarcerated for three long years, Elonis' attorney embarked on an arduous legal battle, asserting that the government had trampled on his client's First Amendment rights. The appeal argued that Elonis' statements, however reprehensible, were still protected free speech, and that punishing him for expressing himself, even in a provocative or offensive way, was a slippery slope towards government censorship.

The U.S. Supreme Court decided to review Elonis' case on grounds of the First Amendment. The decision to hear the case sparked renewed debate about the line between protected free speech and illegal threats. Many wondered: What makes a threat "true" and therefore unprotected by the First Amendment? Does a threat need to be credible or likely to be carried out? Can words alone be enough to constitute a criminal act? And how do we prove that a threat was meant to be serious, rather than simply an empty or misguided expression of anger or frustration?

In his 2011 trial, Elonis' defense hinged on the argument that threats alone are not harmful and are therefore shielded by the First Amendment. Elonis testified on his own behalf, contending that he had not made a 'true threat' against his ex-wife because he had no intention of actually harming her. He said that the threats were simply a means of expressing his pain and frustration over the dissolution of their marriage, a form of 'therapy' that helped him cope.

Tara Elonis testified for the prosecution. She described how she felt stalked and unsafe, not only for herself but also for her children and her family. She spoke of the fear that had been instilled in her as a result of the online threats and of the stress of living with the constant worry that her ex-husband would follow through on his threats.

In a 2003 Supreme Court decision, Justice Sandra Day O'Connor noted that the law is designed to protect individuals 'from the fear of violence and from the disruption that fear engenders.' This supports the idea that Elonis' online threats caused Tara real harm, even if he didn't intend to actually carry them out.

The core constitutional question the Supreme Court considered was whether the rights of the speaker or the rights of those threatened should prevail. The ACLU, in support of Elonis, argued that the bar for criminalizing speech should be higher to avoid convicting people over mistakes or misunderstandings. They proposed that speech should only be considered criminal if the prosecution can prove beyond a reasonable doubt that the speaker had a clear intent to carry out the threat." Basically, the ACLU wanted to safeguard against over-criminalization of speech while still holding people accountable for real threats.

In the historic ruling on June 1, 2015, the Supreme Court reversed the conviction of Anthony Elonis. The Supreme Court justices voted 7-2 which meant that Mr. Elonis's online comments did not rise to the level of true threats under the First Amendment. This ruling establishes a new benchmark for what constitutes free speech.