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December 2, 2014

Is making a threat on social media a crime?

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A Supreme Court case will soon decide whether making threats on social media is illegal.

Anthony Elonis separated from his wife in 2010 and began posting violent statements about her and law enforcement, prompting the FBI to begin monitoring his posts.

After he posted graphic violent descriptions, he was charged under a law that prohibits threatening to inflict bodily harm via “interstate commerce”—in this case, the Internet.

The defense argues that a person can only be prosecuted if there is “subjective intent”- in other words, that the person intends to harm another person. The lawyer told the court that Elonis was merely trying to work through his pain after the separation and that the posts were tied to his recent interest in rap lyrics; therefore, he should be protected under the First Amendment freedom of speech.

The prosecution says Elonis’ posts do not constitute rap lyrics meant for entertainment, and he should be convicted if a reasonable person would interpret the posts as threats.

This is the first big case that addresses harassment and threats on social media.

73 percent of adults have witnessed online harassment and 40 percent of adults have been targets themselves, according to the Pew Research Center. Online harassment is also a major problem for teenagers, 88 percent of whom reported witnessing cruel behavior against another person on social media, according to the Pew Research Center.

Several examples of online harassment have received widespread attention recently. When 16-year-old Alex Lee was photographed while working at a local Target, his image became an online sensation, but the attention also led to online death threats that made him afraid to leave his house. And two high-profile women in gaming, developer Zoe Quinn and critic Anita Sarkeesian, have recently been the targets of online threats that forced Sarkeesian to move.


Warm up questions
  1. What is the First Amendment? How does the government protect freedom of speech?
  2. The Pew Research Center reported that that 40 percent of social media-using teens have experienced at least one negative outcome as a result of using a social networking site and 88 percent of students have witnessing cruel behavior against another person. Have you or someone you know ever been harassed or bullied online through social media?
  3. How would you know if someone was threatening you?
Critical thinking questions
  1. The Supreme Court decided over four decades ago that criminal threats are not protected under the First Amendment. Do you agree with this decision? What special characteristics of social media might complicate things?
  2. Define subjective intent in your own words and give an example. Do you believe, in this case, that subjective intent had been established beyond a reasonable doubt and that a reasonable person would also be able to identify that there was intent? What is the definition of “reasonable”?
  3. Imagine that you are a lawyer for the prosecution trying to convict the accused and the accused has written threatening messages to another person online. You must prove, beyond a reasonable doubt, that the accused had the subjective intent to commit a crime. How would you go about doing this?
  4. How might the Supreme Court’s decision affect how teenagers interact online?
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