A Paper on Threatening Language in the Age of Social Media
Threatening Language and Social Media
The lack of clarity surrounding the legality of threatening speech has been an issue pertaining to communication law, which has lead to questionable court rulings in cases involving threatening speech. The First Amendment of the Constitution is not absolute and does not protect certain forms of speech, including “fighting words” or threatening speech if it constitutes a true threat. [1]True threats encompass any statement 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 even though the speaker need not actually intend to carry out the threat. [2]However, what speech is considered to be a true threat is difficult to distinguish, especially when the speech takes place on social media. With Social Media use as prominent as ever, there are millions of people posting on Facebook, Twitter, and other platforms daily, and everyone wants to exercise their First Amendment rights to free speech. Commonly found among these posts are examples of threatening speech, however, it is difficult to recognize the level of intent expressed by written statements. The lack of clarity pertaining to what degree threatening speech should be protected raises the question of under what circumstances should threatening language on social media be considered true threat. Without intent, there is no crime. Tocreate a more defined line between threatening and non threatening speech, the law should require proof of a subjective intent in court to determine threatening speech as a true threat.
The prominent issue pertaining to threatening speech and social media is the lack of a system, or test, to determine if language is found to be considered a true threat or not. Because of this lack of a set system, courts resort to statutory interpretation and objective reasoning as means of ruling certain cases involving threatening speech. Objective reasoning, also known as the reasonable person standard, which is an objective test in which the conduct of the accused is compared to that of a reasonable person under similar circumstances.[3]An objective standard could lead to an innocent person ending up in jail, and therefore, courts must distinguish protected speech from statements meant to inflict fear or harm.
In any definition or meaning of the word “threat” or “threaten”, another person’s feelings is not relevant or present, as the objective standard follows. However, every definition of threat does include a component about intent. The Oxford Dictionary defines threat as, “a statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done”. [4]The Merriam-Webster dictionary states that threat is, “an expression of intention to inflict evil, injury, or damage.” [5]The definition of threat found in the Free Dictionary states that threat is, “an expression of an intention to inflict pain, harm, or punishment”, or, “an indication of impending danger or harm”. [6]All of these English definitions of the word threat include parts about intent, which is the basis for the subjective standard. A subjective standard takes into consideration the mindset of the individual, which makes the most sense in dealing with rulings of cases involving threatening speech. In a subjective test the courts must prove that the speaker intended to make a statement and that he intended his remarks to be received as a threat. This test was adopted in the case of United States v. Casselwhere the court emphasized the requirement that “communication itself be intentional, but also the requirement that the speaker intended for his language to threaten the victim.” [7]
The ruling of the case Elonis v United States directly struggles with the issue of defining threatening speech as a true threat, includingwhat intent the statute requires for conviction and whether that proof is sufficient under the First Amendment’s Free Speech Clause. [8]Elonis was convicted under Section 875(c) of Title 18 of the U.S. Codewhich criminalizes the transmission of threats in interstate commerce.[9]The law states that, “whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” [10] However, the test that we use to decide if threatening speech poses a true threat is not very reliable. For a criminal offense that has such great consequences, the outcome of a case should not rely on a reasonable objective person, and should depend on a subjective test or standard.
After his wife left him and took their children, Anthony Elonis posted threatening rap lyrics to Facebook. [11]Included in the rap lyrics were statements to co-workers, the public, his wife, law enforcement, a kindergarten, and a federal agent, which were posted under the name of “Tone Dougie”. [12]The threatening lyrics about his wife read:
“Hi, I’m Tone Elonis. Did you know that it’s illegal for me to say I want tokill my wife? It’s one of the only sentences that I’m not allowed to say. . . Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife . . . Um, but what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. . .. But not illegal to say with a mortar launcher. Because that’s its own sentence . . .. I also found out that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. . .. Yet even more illegal to show an illustrated diagram. [diagram of the house] . . ..” [13]
Although Elonis may have not acted upon his speech, it is clearly threatening. He descriptively explains how he would kill his wife and could be considered a threat to his family and the public. In reaction to the lyrics, his wife stated in court that she was in fear for her life, but there is no set system to prove that the statements possessed the intent to harm any of the victims of his lyrics, even though they were extremely threatening and would be found to threaten most people. This is where the common use of the reasonable person standard can be proved to not be effective in communication law. In the case, Elonis appealed and argued that "true threats" require a subjective intent to threaten. [14]After an FBI agent left his house, Elonis posted on Facebook:
So the next time you knock, you best be serving a warrant
And bring yo’ SWAT and an explosives expert while you’re at it
Cause little did y’all know, I was strapped wit’ a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus’ waitin’ for y’all to handcuff me and pat me down
Touch the detonator in my pocket and we’re all goin’ [15]
Proof of subjective intent to threaten should be necessary in any case, and if the defendant was saying that he had no intent to harm anyone, why would he write a post on Facebook about bombing an FBI agent? In this ruling, the court held that an objective standard would risk punishing an innocent person because the crucial element that makes this behavior criminal is the threat, not merely the posting, which is why we need to use a subjective test for threatening speech. [16]The intensity to Elonis’ words should serve some poof of intent to threaten.
However, on the other side of the argument, people feel differently about proving intent and value the objective standard. According to the Obama administration, requiring proof that a speaker intended to be threatening would undermine the law’s protective purpose. In its brief to the court, the Justice Department argues that no matter what someone believes about his comments, it doesn’t lessen the fear and anxiety they might cause for other people. [17]Courts described threats as “unpleasantly sharp attacks”, which is the closest possible description to a true threat without calling it that specifically, so the speech can remain protected under the First Amendment. [18]However, the district court instructed the jury that a "true threat," which falls outside the scope of First Amendment speech protections, requires an objective intent to threaten. The minority ruling of the case wasthat a defendant can be found guilty of communicating a threat, even if he did not intend that his words be taken in that manner, as long as a reasonable person would have understood his words as threatening. Contrastingly, the minority view requires not only that a speaker’s words be reasonably perceived as a threat, but also that the speaker intended that his words be seen or heard in precisely that way. [19]The gray area between these two views continues to provoke the question, where do we draw the line between regulating threatening speech and an individual’s right to free speech?
Threatening speech on social media should not be as protected as verbal speech by the First Amendment to lessen the confusion in courts and increase the feeling of public safety by individuals. The case of Elonis v United States exemplifies the issue in communication law in defining on what level threatening speech is considered true threat. The use of a subjective test in courts would aid in the debate and uncertainty in determining what speech is to be considered true threat. The use of a subjective test would be more reliable in courts than an objective test which brings in a third party to determine the ruling of a defendant. A subjective test requires proof to be necessary and reduces the risk of an innocent person serving time, but also more consistently assures that someone with the intent to harm someone receives the correct case ruling. Social Media is a constantly growing area of communication and variations to laws and new laws are in need of being implemented to maintain safety online and in person.
[1]Olson, Kathleen K. "The First Amendment in Theory and Practice." Communication and The
Law. Northport, Alabama: Vision, 2016. Print.
[2]"Virginia v. Black." Justia Law. US Supreme Court, n.d. Web. 20 May 2016.
[3]"Reasonable Person Standard." TheFreeDictionary.com. N.p., n.d. Web. 23 May 2016.
[4]"Definition of Threat in English." Oxford Dictionaries. Oxford University Press, n.d. Web. 22
May 2016.
[5]"Theat." Merriam-Webster. Merriam-Webster, n.d. Web. 22 May 2016.
[6]"Definition of Threat." The Free Dictionary. N.p., n.d. Web. 22 May 2016.
[7]Larkin, Paul, and Jordan RichardsonThe. "True Threats and the Limits of First Amendment
Protection."The Heritage Foundation. The Heritage Foundation, n.d. Web. 20 May 2016.
[8]Larkin, Paul, and Jordan RichardsonThe. "True Threats and the Limits of First Amendment
Protection."The Heritage Foundation. The Heritage Foundation, n.d. Web. 20 May 2016.
[9]"Elonis v United States." Oyez. N.p., n.d. Web. 21 May 2016.
[10]"18 U.S. Code § 875 - Interstate Communications." Cornell University Law School. Legal
Information Institute, n.d. Web. 18 May 2016.
[11]Hananel, Sam. "Should Threatening Speech Be Protected on Facebook?" PBS. PBS, n.d. Web.
21 May 2016.
[12]Snow, Eric. "Elonis v. United States: Social Media Posts and Specific Criminal Intent?"
Radford University Virginia Police Legal Bulletin. Radford University, n.d. Web. 18 May 2016.
[13]Snow, Eric. "Elonis v. United States: Social Media Posts and Specific Criminal Intent?"
Radford University Virginia Police Legal Bulletin. Radford University, n.d. Web. 18 May 2016.
[14]"Elonis v United States." Oyez. N.p., n.d. Web. 21 May 2016.
[15]Larkin, Paul, and Jordan RichardsonThe. "True Threats and the Limits of First Amendment
Protection." The Heritage Foundation. The Heritage Foundation, n.d. Web. 20 May 2016.
[16]"Elonis v United States." Oyez. N.p., n.d. Web. 21 May 2016.
[17]Hananel, Sam. "Should Threatening Speech Be Protected on Facebook?" PBS. PBS, n.d. Web.
21 May 2016.
[18]Hananel, Sam. "Should Threatening Speech Be Protected on Facebook?" PBS. PBS, n.d. Web.
21 May 2016.
[19]Larkin, Paul, and Jordan RichardsonThe. "True Threats and the Limits of First Amendment
Protection." The Heritage Foundation. The Heritage Foundation, n.d. Web. 20 May 2016.