Can Social Media Speech Violate Protection-From-Abuse Orders?

June 30, 2015Articles The Legal Intelligencer

Reprinted with permission from the June 30 issue of The Legal Intelligencer. (c) 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

When the U.S. Supreme Court took up the appeal of Anthony Elonis' conviction in Elonis v. United States (Docket No. 12-983, Term 2014), under the federal criminal statute 18 U.S.C. Section 875 (related to the use of transmitting by interstate or commerce any communication threatening to kidnap or injure another person), observers and legal analysts surmised it was the court's first significant foray into social media speech and content.

However, the decision, drafted by Chief Justice John G. Roberts Jr. and joined by seven justices (with Justice Samuel A. Alito Jr. writing in concurrence), overturned Elonis' conviction on statutory construction grounds related to requisite mental intent needed to violate the law. The decision, however, keeps open the question as to whether Elonis' statements are protected speech and, if so, whether any standard exists to gauge protected speech against direct or indirect threats made over social media.

Elonis was convicted in 2010 and sentenced to 44 months in prison for Facebook statements in the form of rap lyrics under the pseudonym "Tone Dougie." Elonis made references in lyrics and poems to his estranged wife being shot through her folded-up protection-from-abuse order; violence against his former co-workers at a Pennsylvania amusement park; and thinly veiled references to attacking a kindergarten class in a Sandy Hook-type assault. The lyrics about the school attack drew the attention of the FBI and, after interviewing Elonis, the special agent assigned to investigate the threat drew the ire of Elonis, who described his desire and the ease of effort it would have taken to slit her throat during their talk.

The error at the trial level, the Supreme Court determined, was the jury instruction permitting a conviction if a "reasonable person" would understand the statements made by Elonis as threats to his wife and others. Elonis' defense was predicated, in part, on asserting a First Amendment right to free speech and that the lyrics and poetry were designed to provide him with an emotional outlet and not as a way to threaten his wife or others. In making the statements, he argued, he did not have the requisite mental intent to threaten anyone.

The debate between the prosecution and defense could be distilled down to one of whether Section 875 required that the subjective mental intent necessary to convict should be that of the speaker or the interpretation of the speaker's intent by a "reasonable person" hearing the statement.

This debate, as characterized by Alito, is actually whether "recklessness" is a sufficient standard to convict a person for these threats. The majority, however, did not share that perspective and found that while neither side articulated a particular mental state requirement for Section 875(c), that is not to say such a requirement does not exist. To wit, the court cites precedence establishing that the absence of a stated criminal intent in a statute does not mean the crime does not require one.

Ultimately, the court relied on the premise that "wrongdoing must be conscious to be criminal" and the actor must have the awareness that the statement threatens, rather than whether a "reasonable person" would consider the statement a threat. To hold otherwise, the court reasoned, would be to apply a negligence standard to criminal conduct; a standard the court reaffirms has historically been avoided.

In concurring with the majority, Alito shared the viewpoint that a criminal conviction requires some sort of mens rea connected to the commission of the crime and one beyond negligence. He departed from the majority, however, by arguing for the application of a recklessness standard to Elonis' statements. In the progression of culpability, recklessness follows negligence, Alito reasoned; therefore, a conviction would have been appropriate where Elonis consciously disregarded the risk that the communication he transmitted would be interpreted as a true threat.

Like Justice Clarence Thomas in his dissent, Alito was critical of the majority's failure to define how, if at all, statements like those made by Elonis may be criminal. Alito saw the criminality in Elonis' statements, not the art and certainly not their therapeutic value. He rejected any argument for First Amendment protections to such statements and drew a sharp distinction between the context of lyrics performed to audiences and those posted to social media, where evidence demonstrates that Elonis knew his wife would read them. Alito saw the risk the majority's opinion creates in allowing someone to make pointed threats to another, but by "[dressing] up a real threat in the guise of rap lyrics, a parody, or something similar," avoiding criminal prosecution.

The application of the Elonis decision to Pennsylvania's criminal statutes and protection-from-abuse laws is unclear, but Alito's vision of a recklessness standard for such statements is likely to emerge as the law on this issue.

A recklessness standard for such statements makes sense in the context of an indirect criminal contempt charge under a protection-from-abuse order. Where a protected party either shares social media contacts with their abuser; the abuser uses an open forum to post statements; or the abuser knows the victim will read or be exposed to the statements, would it not be a violation under 23 Pa.C.S.A. Section 6108(a)(6), prohibiting the defendant from having any contact with the plaintiff, or under Section 6108(a)(9), prohibiting the defendant from stalking or harassing the plaintiff, as defined by the criminal statute? Where the intent is to post statements to social media knowing the likelihood of exposure to the victim, it is likely to be considered an indirect attempt at contact, if not direct contact outright.

As argued by Thomas in the dissent, the argument made by Elonis would make threats such as his one of the most protected categories of unprotected speech. Elonis intended to terrify the subjects of his rap lyrics, thus upholding his conviction would neither reject nor ignore a mental intent standard, Thomas said. Restricting such statements, Thomas reasoned, is akin to restrictions on "fighting words," which require no proof of intent to provoke a violent reaction but are defined by what language an "ordinary citizen" would react to. Thomas ultimately finds that the majority's opinion leaves that question as to whether Elonis' statements are protected speech unanswered and the lower courts without definitive guidance.

It is unlikely the majority opinion of Elonis will have a chilling effect on prosecutions or convictions based on similar threatening statements. The Elonis majority opinion did little, if anything, to address social media and Internet speech or give guidance as to whether such speech purposefully disseminated over social media violates state and federal criminal codes or protection-from-abuse orders.

Where the majority opinion reaffirms that negligence is not an appropriate standard of mental intent, Alito's concurrence articulates a standard where a statement's purposeful dissemination over social media moves it beyond "negligence" to where the "recklessness" of the act allows the courts to consider the victim's interpretation of the statement. Consistent enforcement of protection-from-abuse orders and convictions, even without the support of the Elonis majority opinion, may eventually give rise to an appeal that will allow the court to consider Alito's proposed recklessness standard or some other level of protection, if any, Elonis threats are entitled to receive.

Reprinted with permission from the June 30 issue of The Legal Intelligencer. (c) 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.