Supreme Court to weigh in on violent threats on Facebook

Should it be considered a crime or free speech when a person threatens to kill someone on social media?

Dara Kerr Former senior reporter
Dara Kerr was a senior reporter for CNET covering the on-demand economy and tech culture. She grew up in Colorado, went to school in New York City and can never remember how to pronounce gif.
Dara Kerr
2 min read


Four years ago, Anthony Elonis took to Facebook and posted a public note to his estranged wife, according to the Associated Press.

"There's one way to love you but a thousand ways to kill you," he wrote. "I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

Needless to say this post and others like it alarmed Elonis' former employer, who alerted the authorities about these social media musings, according to the Associated Press.

After FBI agents visited his home, Elonis got on Facebook again and wrote, "Little agent lady stood so close, took all the strength I had not to turn the (woman) ghost. Pull my knife, flick my wrist and slit her throat."

Unsurprisingly, Elonis landed in prison shortly after that.

All along Elonis has claimed his posts were artistic and that he meant no harm, according to the Associated Press. They were just rap lyrics, he said, and he is entitled to free speech under the First Amendment.

After being appealed through the courts, Elonis' case has landed at the Supreme Court. And now, it's up to this highest court to decide whether online threats -- where the speaker's intent isn't completely clear -- should be considered criminal or free speech.

The Supreme Court announced on Monday that it will take Elonis' case, which is set to be heard this fall. According to USA Today, the two lower federal courts that first heard the case ruled that Elonis' behavior was criminal because even if he didn't intend to use violence, any "reasonable person" would feel threatened by that kind of talk.

Elonis is just one of probably thousands of people who have used the social network to rant, bully, and threaten. And it's not only Facebook -- people have also used Twitter, YouTube, and other online social venues to reveal their dark feelings.

This kind of behavior is forbidden on Facebook and other social networks. Under Facebook's terms of service, it says, "You may not credibly threaten others." But, not being legal authorities, social networks tend to delete the violent content or user accounts and move on -- although Facebook does say it "may escalate to law enforcement when we perceive a genuine risk of physical harm, or a direct threat to public safety."

The Supreme Court has avoided cases like this in the past, but as social media has become so mainstream it appears the court now believes it should weigh in on the matter.

The court said (PDF) Monday that when it hears Elonis' case it will consider whether conviction of threatening another person under the law "requires proof of the defendant's subjective intent to threaten."