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Commentary: Facebook case recalls prior litigation

An intriguing case argued last month before the U.S. Supreme Court raises important and interesting questions concerning the boundaries between freedom of speech and wrongful communications on social media, Elonis v. United States, No. 13-983.

The high court is currently pondering the case, which was argued before the justices at the beginning of December.

Facebook fracas

The pending Supreme Court fracas arises out of the conviction and 44 month prison sentence imposed under 18 U.S.C. § 875(c) upon a Pennsylvania man. He posted on Facebook threats to his estranged wife; his former workplace after he was fired; school children; and local and federal law enforcement personnel. The trial judge instructed the jury that violation of the statute, which forbids interstate communication of threats, requires proof that a “reasonable person” would consider the communications as threatening, 879 F.Supp. 2d 335 (E.D. Pa 2012), a standard that the 3rd Circuit Court of Appeals affirmed, 730 F.3d 321 (3d Cir. 2013).

The Supreme Court agreed to hear the case to decide if the statute “requires proof of defendant’s subjective intent to threaten,” rather than solely on objective test whether the remarks are regarded as threatening by a “reasonable person,” which was the doctrine applied by the two lower courts. The posted statements included the following:

“I am not going to rest until [my wife’s] body is a mess.”

“It’s illegal for me to say that I want to kill my wife.”

“Hell hath no fury like a crazy man in a kindergarten class.”

“I’ve got enough explosives to take care of the state police and the sheriff’s department.”

“I am willing to go to jail for my constitutional rights. Are you?”

The defendant maintains that his postings were therapeutic to vent anger over the departure of his wife, who took their two children with her, and his subsequent loss of his job, constituted parodies of popular rap songs, and that his remarks are constitutionally protected freedom of speech under the First Amendment. The latter view was endorsed by freedom of expression amici, who warned the justices that prosecution of this and other similar cases would “chill constitutionally protected speech.”

But others beg to differ. The Anti-Defamation League, which advocates for Jewish interests, points out in its amicus brief that “the Internet has lowered the barriers to issuing a true threat.” A study conducted by a group opposing domestic violence, the National Network Opposing Domestic Abuse, notes that 90 percent of domestic violence incidents involve some form of technologically transmitted threat on social media, usually directed to women, especially those between 18 and 24 years old.

The Facebook poster’s demand that a subjective, rather than objective, standard be utilized, making prosecution of the convictions much harder, may seem like a long shot. But the same argument was recently accepted by the 10th Circuit, which reversed and remanded a conviction under § 875(c) with a directive to use a subjective standard, necessitating proof beyond reasonable doubt of defendant’s improper intent. U.S. v. Heineman, 767 F.3d 970 (10th Cir. 2014). (White supremacy mailing to college professor).

The justices engaged in the usual lively dialogue during the hearing, punctuated by Chief Justice John Roberts’ references to music by rapper Eminem. Justice Samuel Alito was skeptical of the First Amendment defense, saying it “sounds like a road map for threatening a spouse and getting away with it.” But Justice Ruth Bader Ginsberg, back on the bench shortly after a heart stent procedure, questioned “How does one prove what’s in someone else’s mind?” while Justice Anthony Kennedy, in his characteristic man-in-the-middle spot, lamented that the court’s past case law “could mean so many things.”

The Elonis case represents a continuation of the high court’s dabbling with high tech issues, see City of Ontario v. Quon, 130 S.Ct. 2619 (2010) (warrantless search approved for employer to view text messages on police pagers); Riley v. California, 134 S.Ct. 2473 (2014) (search of cellphone without warrant deemed invalid). The Elonis decision, expected later this term, may set guidelines for resolving First Amendment disputes concerning communications on social media.

Minnesota matter

A Minnesota matter that was a precursor to the pending Elonis case arose in a civil context, involving academic discipline of a student at the University of Minnesota in Tatro v. University of Minnesota, 816 N.W.2d 509 (Minn. 2012).

The litigation began after the university disciplined a junior in its mortuary science program for posting on her Facebook account statements deemed threatening to colleagues and others. This included statements that she relished the opportunity to “dissect” a cadaver that she derisively nicknamed “Bernie,” wanted to “stab a certain someone in the throat,” referring to her ex-boyfriend, and that she had “lots of aggression to be taken out” in the laboratory dissection class. The university’s discipline included an “F” grade in her laboratory course; mandatory psychiatric evaluation and academic probation for the balance of her undergraduate career.

Her lawsuit challenging the sanctions alleged, like the defendant in Elonis, that she was merely being satirical, did not intend to frighten or harm anyone, was alluding to popular musical lyrics, and was exercising her First Amendment right of freedom of speech. But the state Supreme Court rejected her claims, holding that the university was acting within its discretion to punish use of social media that “violates established professional conduct standards” and was “narrowly tailored and directly related” to legitimate academic concerns.

The Tatro case was not the first of its kind — nor the last — involving the clash between First Amendment rights and social media issues in academia as in the Heineman case in the 10th Circuit, and otherwise, e.g. U.S. v. Jeffries, 692 F.3d 1492 (6th Cir. 1997) (music video on YouTube); United States v. Teague, 443 F.3d 310 (10th Cir. 2006) (email threat by client to former divorce lawyer). But it has stood as a landmark Minnesota ruling in the heavily trafficked technological highway at the crossroads between freedom of expression and criminality. As the pending Elonis case reflects, that path is getting a lot of traffic these days.

Perspective pointers

Some other threat cases under 18 U.S.C. sec. 875 (c):

U.S. v. Viefhaus (1999): Guilty for white supremacist message on telephone.

U.S. v. Alkhabaz (1996): Email fantasies about torture, rape not actionable.

U.S. v. Darby (1994): Conviction for telephone call to IRS agent.

U.S. v. Himmelwright (1983): Guilty for letters threatening to assassinate president.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Hellmuth & Johnson PLLC in Minnesota. A version of this column originally appeared in Minnesota Lawyer, sister publication to The Daily Record.

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