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Elonis and What is an Online Threat?

On college campuses and Twitter accounts everywhere, "threat" has taken on an overbroad definition. Merely disagreeing with someone is harassing and threatening conduct. Calling someone a bad name or hurting their feelings is a threat.

But what is an actual, get-you-thrown-into-jail threat made online online? 

The Supreme Court was supposed to answer that question in Elonis v. United States, which involved a real piece of crap who posted stuff online that in my view seems quite clearly as threatening. The Elonis opinion answered one question while leaving another open.

Quick background: A "true threat" is not protected by the First Amendment. Criminal threats made online are a federal offense under 18 U. S. C. §875(c), which makes it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another."

What is a "true threat"?

Now that we know true threats are a crime, we have to find out what a true threat is. At Elonis' trial for making threats online, the jury was told (emphasis added):

“A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” 

The Supreme Court held in Elonis it is not enough for a statement to make a "reasonable person" perceive the defendant's statements as an expression of an intent to inflict bodily injury to cause death.

The Court wrote:

In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.

Great, what is the standard? How can you show something is a true threat?

In an opinion only lawyers will grok, which is something I dislike about the law as it has become outside the understanding of even highly intelligent people, the Court set up some goal posts. Sort of:

There is no dispute that the mental state requirement in Section 875(c) is satisfied 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.

In other words, if government shows someone had the intent to make a threat, then it's a true threat. (How does the government prove what you intended? That's a question for another day!)

Also, if the government can show you intended the communication to be viewed as a threat, then it's a true threat.

But it's not enough to merely show that a reasonable person would have interpreted a person's words as a threat.

Does that make sense? (Yes. No. Sort of. We shall see.) 

In his concurring opinion, Justice Alito points out the Elonis ruling is, as the cool kids say, problematic.

Justice Alito correctly observed the confusion caused by today's Elonis opinion. In his concurring opinion, he wrote:

Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.


What's my take on Elonis on online threats?

Don't wish death upon anyone. Don't tell people you want to see them personally die.

Even though Elonis suggests merely wishing death on others would quite clearly not be a true threat, why do it?

There are enough ways to make your point without wishing death or bodily harm on another.

If you don't want to address the arguments others make: Call people fat, call them ugly, call them stupid.

But there is no reason to wish them dead. 

If you personally know someone, this is especially true.

And never ever say you are going to personally harm someone, especially if you know that person or have a prior relationship making those words appear like an expression of your intent to cause bodily harm on or to kill someone.

P.S., Elonis clearly eviscerates social justice warriors.

After Elonis, any intimation that disagreement or insults are online threats is the sign of mental instability.

The Supreme Court is not ready to gut the First Amendment to appease hateful radicals who attempt to silence and censor us all.

Title IX hearings, bogus restraining orders, and campus speech codes remain a threat to robust speech. Fortunately, criminal prosecution does not.

Read next: How Zoe Quinn Conned a Judge into Violating the First Amendment