Online Threats and the Supremes

As Justin Carter's case drags on in Comal County District Court (another pre­trial hearing is scheduled for Jan. 8), the U.S. Supreme Court has been considering Elonis v. United States, which also deals with free speech and online threats.

In February 2013, Carter, 18 years old at the time, was indicted on charges of "terroristic threats" for a Facebook comment he made to another League of Legends player. The comment, which lawyer Don Flanary (representing Carter pro bono) argues was clearly intended to be sarcastic, was part of an online exchange between Carter and another player, who suggested that he was crazy. Carter responded, "I'm fucked in the head alright, I think I'ma SHOOT UP A KINDERGARTEN ... AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN ... AND EAT THE BEATING HEART OF ONE OF THEM."

A Canadian woman saw the post on Facebook and reported Carter to the police, who arrested him for making a terroristic threat. After spending months in jail – where he reportedly suffered from verbal and physical abuse – Carter was released on bond when an anonymous donor paid his $500,000 bail. Now, almost two years after the incident, Carter is still awaiting trial. Following multiple failed attempts to have the case dismissed, another pre­trial hearing is scheduled for Jan. 8 in Comal County.

Meanwhile, the issue at hand in Elonis v. United States is whether a conviction for communicating a threat of injury over the Internet requires "proof of the defendant's subjective intent to threaten," or whether it's enough to show that a "reasonable person" would regard the statement as threatening. Earlier this month, the Supreme Court heard oral arguments in the case, which will likely be decided in the spring, or, at the latest, the end of June. For the first time, the justices will consider limits for speech on social media.

The specific case concerns Pennsylvania man Anthony Elonis, who was convicted and sentenced to more than three years in prison for making threats on Facebook toward his estranged wife, his former co­-work­ers, police, and an FBI agent. In October 2010, after his wife of seven years had recently moved out with their two kids, Elonis shared a Facebook status: "If I only knew then what I know now ... I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder."

Elonis posted similar comments in the following months. After reading a post from Elonis, an FBI agent visited Elonis' home – which led Elonis to post about the FBI agent: "Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat." Around that same time, he posted a picture from Halloween, in which the costumed Elonis held a fake knife to an also costumed co­-worker's neck, captioning it, "I wish." After his boss saw the image, Elonis was fired.

In defense of his alleged threats, Elonis says his language was "never intended to threaten anyone," but, like Emin­em's music, for example, his words were "therapeutic" and helped him "to deal with the pain."

So how much does it matter, if at all, that someone claims that his or her words weren't intended as threats? That's the question at the heart of the Supreme Court's pending decision.

In many ways, Carter's case is very different from that of Elonis, but not only because Carter's "threat" targeted no specific people. Unlike Carter, who publicly apologized for his single, general comment, 31-­year-­old Elonis wrote that he was "willing to go to jail for my constitutional rights," and continued to post highly questionable comments. The Student Press Law Center, along with the Electronic Frontier Foun­da­tion and PEN American Center, filed a friend-of-the-court brief in support of Elonis – or, perhaps more accurately, in support of free speech. Frank LoMonte, the executive director of the SPLC, told the Chronicle that, in terms of severity, the Elonis case "is in a different universe" than the Carter case, and that "the guilty verdict against [Elonis] is probably the proper one."

Elonis' post seemed to clearly target his wife, whom he knew well and had conflicts with, and one would assume that Elonis would have known that the comments could make his wife fearful, based on their relationship. But LoMonte also cautioned that "this case is not just about this one guy from Pennsylvania." While Elonis' comments were directed at people he knew personally, the person who reported Justin Carter had no relationship with Carter; as LoMonte described it, Carter's message was basically "the equivalent of a message in a bottle." As the SPLC brief notes, the other gamers interacting with Carter apparently understood Carter's comments as a joke – it was only when a woman in Canada saw the comment online that he was reported to authorities.

And that's exactly what worries LoMonte and others: "When you decide what is or is not a threat on social media, you may very well be looping in a lot of harmless joke-­speech that gets misunderstood."