Modern technology makes it difficult to determine what is meant as a threat and what is meant as a joke because tone and context are hard to convey via text or on social media posts.Please read the background handout and then write following the guidelines described in the case study handout. Elonis v. the U.S. is the most high-profile case on this topic.

Case Study: True Threat or Venting? (2015) EXPLORE THE DEBATE How should the government determine which online threats if any are protected by the First Amendment? THE CASE In 2010, Anthony Elonis's wife left him and his employer fired him. In response, Elonis began posting violent rap-style lyrics on Facebook about them. For example, Elonis wrote of his estranged wife: "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." Elonis's wife feared for her safety. When a state court issued her a Protection from Abuse order, Elonis asked on his Facebook wall if the order was "thick enough to stop a bullet." He also included a link to the "Freedom of Speech" entry on Wikipedia. Elonis's violent messages continued, including posts about shooting up an elementary school and wanting to kill an FBI agent who visited him. On Dec. 8, 2010, Elonis was arrested and charged with transmitting communications containing a threat to injure another person. ("True threats" are not protected by the First Amendment.) Elonis argued that his rap lyrics were therapeutic, written to express his anger and depression, and often included disclaimers of being fictitious. He also maintained that the posts did not indicate intent to carry out the threats; therefore, they should be protected by freedom of speech. You are a judge presiding over the case, and must rule whether his posts are protected free expression. What do you decide? PICK A POSITION A. Elonis's posts are protected speech. People say things they don't mean all the time; nobody can prove he was being serious in his posts. B. Elonis's posts are true threats and not protected speech. Regardless of his intent, his posts made his estranged wife fear for her safety. QUESTIONS TO CONSIDER What are some arguments for his speech being protected by the First Amendment? What are some arguments against it? How can you tell if speech posted on social media is meant to be taken seriously? At what point should the government intervene? How are Elonis's posts similar to or different from lyrics of professional rap artists? How could a ruling in favor of Elonis negatively impact the lives of people who are harassed and threatened online? How could a ruling against Elonis negatively impact online speech? How would you balance protecting free expression with protecting people's lives?

Background Anthony Elonis was originally convicted in district court and sentenced to 44 months in prison. The Pennsylvania man and his lawyers argued that the posts were rap lyrics inspired by artists like Eminem. They said his statements were a therapeutic process rather than real threats, and therefore protected by the First Amendment. The use of emoticons and links to the Wikipedia entry "Freedom of Speech" also indicated they weren't meant to be taken seriously, according to the defense. Prosecutors maintained that the threatening Facebook posts were not covered by freedom of speech, but fell under the true threat exception, which applies to "those 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 appealed his conviction to the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit. The court upheld the conviction, applying a "reasonable person" standard rather than considering whether Elonis subjectively intended to carry out the threats. Elonis argued that the Supreme Court's decision in Virginia v. Black (a 2003 case about cross burning) indicated that a true threat must include "subjective intent" although the statute being challenged specifically mentioned a subjective intent standard, unlike the statute Elonis was charged under. The 3rd Circuit deemed that his statements would be interpreted as a real threat by a reasonable person, and therefore weren't protected. In 2013, the Supreme Court agreed to review the case to decide whether "conviction of threatening another person ... requires proof of the defendant's subjective intent to threaten ... or whether it is enough to show that a 'reasonable person' would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort." Social media became an issue in the case. Elonis's petition argued 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." Therefore, his lawyers argued that a subjective standard was more appropriate in deciding the case, given the impersonal nature of communication over the internet. The Supreme Court heard arguments on Dec. 1, 2014. On June 1, 2015, seven justices agreed that Elonis could not be convicted based solely on whether a reasonable person would regard his statements as a threat. The justices said there must be proof that the defendant was aware the posts were threatening. The justices sent the case back to lower courts. By only ruling on jury instructions and proof of intent, the justices skirted the issue of whether his violent posts were protected by the First Amendment. Court watchers said the ruling makes it harder to prosecute threats on Facebook and other social media. And the two dissenting justices called the limited ruling "confusing." Elonis served three years of a 44-month sentence before being released from prison. The Associated Press reported that Elonis was arrested again in April 2015 for allegedly throwing a pot that hit his girlfriend's mother in the head. Police charged him with simple assault and harassment. He was acquitted of both charges. In 2016, the 3rd Circuit Court of Appeals, on remand, upheld Elonis's previous conviction for making interstate threats via Facebook, agreeing with prosecutors that different jury instructions would not have changed the outcome of the case. The Supreme Court refused to hear Elonis's appeal of this decision.