Legal Blog

Just about everyone is on social media today. Whether on Facebook or Twitter or Instagram or any other social media platform, people are using the online platforms as outlets for their emotions. Because it is so easy to access social media accounts at any moment on a phone or tablet, often people post emotional statuses or messages that are composed in the heat of the moment without considering the potential consequences. This can include angry or even violent expressions of frustration that maybe construed as genuine threats. So, where is the line between a constitutionally protected verbal attack and a genuine threat?

Under federal law, it is a crime to transmit the “threat to injure the person of another.” A 1969 Supreme Court case established that this ruling only applies to true threats where evidence to back up the fact that the person issuing the threat had some intention of carrying out the actions articulated in their statement. This excludes statements that are really “political hyperbole” or “vehement,” ”caustic,” or even “unpleasantly sharp attacks.”

On social media, the distinction is often not so clear. While in 1969 most threats would be considered genuine if directed at the person and hyperbole if published in a newspaper in an editorial, in 2014 there are many new ways to make threatening statements. While a Facebook status may be a public venue in which to air grievances, it is also a way to bully or threaten the people in one’s network. The line is much hazier both inside and outside the courts. Most of the lower courts say that the distinction depends on how an objective observer would interpret the message. However, some free-speech groups claim the better distinction would be better found by determining the speaker’s state of mind. After all, satire and sarcasm do not always carry well online. They argue that colorful tirades or coarse language in comments should not be punishable simply because they were misinterpreted online.

The Supreme Court has decided to tackle this issue by ruling on the case of Anthony Elonis, an eastern Pennsylvania man sent to prison for threats made on Facebook to kill his wife, slash the throat of an FBI agent and slaughter a class of Kindergarten students. The lower courts determined that he had crossed the line by including details and doing so in a way that a reasonable person would interpret the remarks as genuine threats. Elonis contends that because he sometimes wrote up threats in rap lyrics and occasionally included disclaimers that he meant no real harm that it was clear he was using social media as an outlet to vent his frustrations and deal with the stress of his wife leaving.

It is not a clear-cut case for many legal experts, and the Supreme Court’s final ruling later this year will give much needed guidance on where exactly the line between angry tweet or status and genuine threat falls. In the meantime, people should be careful what they post on social media in order to avoid prosecution. It can be tempting to post an angry rant about someone who made your day bad or an organization that ruined something for you, but it is important to make sure that the language used errs on the side of caution. While it may be clear in the context of a conversation that “I want to kill him!” is not serious, it can be mush starker when written out online. Currently, rulings are based on the reasonable opinions of people, so if you have any doubts that someone may misinterpret your language as a threat, it is better not to post. The official ruling will most likely come in the fall and will give some useful guidance to us all, but in the meantime, remember that it is better to be safe than sorry.