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Threatened Online? Supreme Court Says Prosecutors Must Prove Intent

Attorney John Elwood talks to reporters Dec. 1 outside the Supreme Court building in Washington after arguing on behalf of Anthony Elonis, who was convicted in 2010 on the grounds of threatening his wife via social media. On Monday the court ruled in favor of Elonis, saying prosecutors must prove that a social media threat was intentional, not just perceived.

The U.S. Supreme Court made it harder Monday to prosecute people for making threats on social media.

The case was brought by Anthony Elonis, who was sentenced to three and a half years in prison for threatening his estranged wife and an FBI agent.

After his wife got a court order barring him from threatening and harassing her, he posted this on his Facebook page: "Fold up your protective order and put it in your pocket. Is it thick enough to stop a bullet?" He mused about making a name for himself by shooting up a kindergarten. And after a visit from a female FBI agent, he posted on Facebook that it "took all the strength I had not to ... slit her throat, leave her bleedin' from the jugular."

Elonis contended his words were only "venting," and he challenged his conviction — contending that the judge wrongly instructed the jury that it could convict if it determined that a reasonable person would view Elonis' words as threats. In contrast, Elonis maintained that to convict, the jury would have to determine that he actually did intend to put his wife and the FBI agent in fear of bodily harm.

The "reasonable person" standard used to convict Elonis was in place in nine of the eleven federal appeals courts, but on Monday the Supreme Court said there has to be a higher bar for criminal convictions.

Writing for the seven-justice majority, Chief Justice John Roberts parsed the federal threats law, finding that it nowhere specifically allows the "reasonable person" standard.

So what standard can prosecutors use? The Roberts opinion said prosecutors must show something about the mental state of the defendant, but the level of evidence required to prove intent remained unclear — whether, for instance, it would be sufficient to show an awareness that the language is so incendiary that it would be perceived as a threat.

Many experts had expected the High Court to delineate some standards for evaluating threats in the digital age, and in light of the First Amendment guarantee of free speech. They definitely were disappointed.

"The mountains of labor have brought forth a mouse," said UCLA Law Professor Eugene Volokh, who writes extensively about the first amendment.

"The court doesn't answer the question, whether if you know there is a substantial likelihood you're scaring the living daylights out of someone, that that's good enough," says University of Maryland law professor Danielle Citron. But, she adds, Congress could amend the law to make it easier to win convictions.

If Congress were to do that, however, it is unclear whether that law itself would be constitutional. Monday's decision specifically said it was leaving open the First Amendment free speech question.

That prompted Justice Clarence Thomas, in dissent, to accuse the majority of "throwing everyone from appellate judges to everyday Facebook users into a state of uncertainty."

Fellow dissenter Samuel Alito added that by not specifying what standard is required, the court has "compounded — not clarified — the confusion."

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