The Universal Declaration of Human Rights, adopted by the United Nations, claims that it is a fundamental right to feel safe from danger. This right is furthered in America, where threatening or intimidating another person is a crime. However, defining these terms has not been a cut and dry task for the Supreme Court. The First Amendment of the United States Constitution guarantees us freedom of expression, and drawing the line between free speech and a threat has been a grey area throughout America’s history.
These ambiguities have become even more unclear since the advent of the Internet, which boasts a “net neutrality” that allows it to operate largely unregulated. On December 1st, the Supreme Court heard oral arguments in Elonis v United States, a case that deals with the issue of the Internet and free speech. Anthony Elonis has spent three years in prison due to posts he made on the social media site Facebook in which he threatened graphic murders of his estranged wife and an FBI agent. Elonis describes himself as an aspiring rapper and claims that his posts are simply lyrics, not threats.
In 2003, the Supreme Court decided in Virginia v Black that threats can only be considered as such if the defendant intended the message to be a threat- this is distinguished from the “Reasonable man” standard that is often employed in legal tests. If applied to Elonis v United States, Elonis’ defense that he is only writing songs and not intending harm would be legally sufficient to shield him from conviction. The American Civil Liberties Union (ACLU) has written an amicus curiae brief in support of Elonis.
The Supreme Court took this case in order to decide what the government needs to prove. If a reasonable person can determine what constitutes a threat then Elonis will return to finish his sentence; if the Court decides that Elonis himself has to intend for a threat to be expressed, then the case will depend on Elonis’ specific intentions rather than his words.
Steve is the Managing Shareholder of Steven J. Klearman & Associates, a civil litigation law firm located in Reno, Nevada. He practices primarily in the areas of civil litigation and injury law, and has authored one of the definitive guides to Nevada civil law that is widely used by Nevada judges and attorneys, his book entitled Elements of Nevada Legal Theories.