NCAC has joined the American Civil Liberties Union and other organizations committed to defending First Amendment freedoms in filing an amicus brief with the Supreme Court in Elonis v. United States. The case involves a conviction for statements posted on Facebook allegedly violating a federal law that makes it illegal to “transmit[ ] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another…” The brief argues that the conviction should be overturned because the jury was not instructed that the defendant could only be convicted if he intended his statements to be threatening. Elonis posted statements, some in the form of rap lyrics, which expressed violent thoughts about his estranged wife, like this one:
there’s one way to love you but a thousand
ways to kill you. I’m not going to rest until
your body is a mess, soaked in blood and dying
from all the little cuts….
It’s nasty stuff, but there’s an important point of law at issue: “to ensure that protected speech is neither punished nor chilled.” Speakers may use “violent and extreme rhetoric… to convey an idea or express displeasure,” as well as to threaten. Although this case involves speech about a personal matter, the law would apply equally to speech on political and social issues that engender passionate disagreement. It is not difficult to imagine a hyperbolic comment to or about public officials or members of disfavored groups becoming the basis for a criminal conviction, when the intent was to express legitimate criticism in the strongest possible language.
These principles are particularly important with regard to online speech, which is “susceptible to multiple interpretations” because it is “often abbreviated, idiosyncratic, decontextualized, and ambiguous.” Whether such statements constitute a threat may be in the eye of the reader, and may depend on familiarity with the style of a particular forum or speaker. The intent requirement provides a crucial check against criminalizing protected speech.
There is no denying that this statement and others posted by Elonis were crude and disturbing. Indeed, a properly charged jury might determine that the online statements, together with other evidence, demonstrate that Elonis did intend to threaten his estranged wife. That remains to be seen. In the meantime, we urge the Court to strike a balance between the understandable impulse to protect individuals and the importance of free speech to the society as a whole, by making it clear that the law punishes only intentional threats, and not reckless speech.
Additional partners in the brief include the Abrams Institute for Freedom of Expression at Yale Law School, the Cato Institute (Cato), and the Center for Democracy and Technology (CDT).