The Supreme Court should probably figure out what constitutes threatening speech on Facebook

The first case to address social media threats and First Amendment protections reached the Supreme Court court this week. The justices ruled in favor of a Pennsylvania man who had been convicted and served 44 months in jail for writing violent Facebook posts. Anthony Elonis had posted messages on his public wall, describing in some gruesome detail plans to kill his wife (who had left him) as well as former colleagues and a federal agent. But the ex-theme park worker argued that his online speech, however aggressive, should have been protected because he never intended to carry out any of the vicious acts described.

Whether online threats should be protected as free speech was never at stake in the case. As with offline speech, true threats to injure a person are not protected by the Constitution. The law has long recognized that a promise of harm is in itself an act of harm, and one that currently can be punished with a five-year jail sentence. The question at the heart of the Facebook threats case, rather, was what legal standards should be applied to deem certain speech acts to be true threats or not. The absence of such a standard is nothing new, but newly problematic in the age of social media.

When Elonis was first convicted, the jury did not find him guilty of intending to commit a school shooting, or truly planning to leave his then-wife’s body “a mess, soaked in blood and dying from all the little cuts” (to mention a few of his charming so-called lyrics). The jury was not asked to consider the defendant’s intent in this sense at all. The only standard applied was whether he knew the meaning of his statements, and whether a reasonable person would have understood his words to be a threat—the “reasonable person” standard.

The SCOTUS ruling overturned the conviction on the grounds that the jury was working on too low a standard to prove a true threat was made. This is important: The Supreme Court did not explicitly rule that Elonis’s online speech did not constitute a threat. The decision simply said that his original conviction was based on an incorrect framing and that it was insufficient for the speech to simply be understood as genuinely threatening by a hypothetical reasonable observer.

It was thus a pretty cautious ruling for a case hailed as a potential landmark for legislating online speech.

There was nothing particularly profound in such a ruling; the court’s opinion is no panegyric to free speech. It was an appeal to a central tenet of criminal law. Namely, that for an individual to be found guilty of a crime, they must in some sense have a “guilty mind,” an understanding of their acts and of wrongdoing. As the ruling noted, “a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with ‘the conventional requirement for criminal conduct—awareness of some wrongdoing.'”

This is the mens rea condition—a mental state requirement on the part of the defendant. What exactly a “guilty mind” state needs to be depends on the crime and the legal precedents set. In Elonis’s case, the convicting jury only needed to consider whether he was a capable English speaker; SCOTUS ruled that more is necessary but did not say exactly what, leaving all the crucial decision making to future lower court cases.

When I wrote about the case last year, I argued that while Elonis’s words were clearly intolerable, they should not be deemed criminal. His messages were not simply threats of violence, but were themselves violent acts which caused immense trauma to his now-ex wife. Still, this does not constitute a genuine threat of physical harm. I maintain that, as online denizens ourselves, we risk dangerous ethical apathy if we reserve judging something as despicable simply because it has not been deemed illegal. Pamela Gellar’s vile anti-Islam hate speech is constitutionally protected, that doesn’t mean we can’t condemn it roundly or that we must countenance it in our personal and collective spaces.

A year later, however, I disagree with my former sentiment that Elonis’s speech should not be criminal. With the hulking caveat that I stand against a criminal justice system that puts people in cages, I submit that if the idea of criminal threat can be applied, it would make sense to apply it to Elonis’s messages.

The Supreme Court was correct to overturn his conviction—the original jury had indeed used a flawed standard for a true threat. However, I believe that a more robust, but First Amendment cautious standard would likely find the Facebook messages truly threatening, not defensible artistic expression.

It’s an unsettling feeling when one finds oneself in agreement with the arch conservative Justice Alito, but of all the SCOTUS opinions on Elonis, I agree with his dissent the most. Alito concurred that the lower courts had erred in their rulings. However, he rightly challenged the majority opinion for failing to say what actually does constitute a true threat if the “reasonable person” standard fails to address the defendant’s mental state. Alito suggests, with good reason, that the mens rea that should apply is that of “recklessness.”

In the taxonomy of legal mental states, recklessness is just above negligence. As the justice explained in his opinion, “someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway. Accordingly, I would hold that a defendant may be convicted under [the federal statute relating to true threats] if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat.”

Philosophically, recklessness does indeed appear a good standard for culpability here. It recognizes that for a successful speech act to occur—a threat in this case—the speaker does not have to necessarily mean the words in his or her sentences. To threaten to dump his wife’s body in a creek it is sufficient (and necessary) that he would know such words, in the context they were written, could be understood as a threat and felt as a threat by his wife. Elonis’s defense, that his Facebook posts were lyrics, doesn’t hold up to the recklessness standard. He may have only meant to write violent prose for therapeutic, artistic purpose, but he was also disregarding the reasonable interpretation of true threat by his wife.

For this reason, Elonis’ argument that his speech is no more truly threatening than Eminem’s violent wife killing lyrics falls apart. The key is context. The content of his Facebook wall may be similar to the lyrics in a track like “Kim”—”We’ll be right back, well I’ll be, you’ll be in the trunk,” goes the song about the rapper’s ex—but the speech acts are different. As Alito noted, “lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person.”

When we talk about criminalizing certain online speech, there’s a fear of mission creep. This is understandable: Earlier this year, police around the country made a sweep of arrests based on what they deemed “credible threats” posted on social media platforms about killing cops. In the wake of one revenge-bent gunman posting on Instagram his desire to “put wings on pigs” before driving to Brooklyn and gunning down two NYPD officers, anti-police speech online became grounds for arrest. And perhaps, by a recklessness standard, this speech counts as threatening because others could regard it as such.

But here is where context should come in. A reasonable observer, not an embattled police department, would have to judge the content as a realistic threat. For the most part, expressing hatred for a violent uniform (not an individual) or quoting lyrics from Body Count or John Maus would not occur as threatening to this person of mythic neutral reason. Describing a former lover’s demise with gruesome flourish is different. It’s like Justice Alito noted (which is not a phrase I like to write), “context matters.”