Elonis v. United States: The Need to Uphold Individual Rights to Free Speech While Protecting Victims of Online True Threats

Alison J. Best

In American society, social networking sites and other online forums dominate modern communication. As of December 2015, over one billion people worldwide actively used Facebook on a daily basis. The increased frequency with which individuals use the Internet as a primary means of communication has profoundly changed the level of access people have to posts, updates, and statements made on social media profiles. Because online communications tend to allow individuals to post their thoughts on a widely accessible network, courts have seen a rise in “true threat” litigation over the past decade, which evaluates whether statements communicated by an individual qualify as threats. Courts have wrestled with several complex issues regarding Internet communications, and they have particularly struggled with how to apply federal statutes prohibiting true threats in ways that do not impermissibly limit the First Amendment right to free speech. As the Supreme Court has not announced a clear formula for how to interpret threatening statements on social networking sites, substantial ambiguity persists regarding what content individuals may post without risking criminal prosecution.

In Elonis v. United States, the Supreme Court had the chance to address this increasingly relevant issue in deciding whether an individual’s Facebook posts qualified as true threats. The Supreme Court erred by failing to concretely define the application of 18 U.S.C. Section 875(c),8 which prohibits the communication of true threats to speech transmitted through online social networking. The Court should have considered both the First Amendment implications and the question of which intent standard to apply when considering online posts as threats as one single issue. Because the Court chose, unfortunately, to separate these issues, it missed a vital opportunity to announce the proper intent standard under 18 U.S.C. Section 875(c). The lack of a concrete standard will lead to continued confusion both in lower courts and to individuals active in social media.11 The Court should have adopted a hybrid reasonable-speaker and reasonable-recipient standard, which would best balance the dual interests of maintaining individual free speech rights while also protecting the public from true threats.