In the Supreme Court’s first opinion regarding social media, the majority held that posting a threat online isn’t a federal crime without proof of the person’s mental state.
This opinion was a result of the Supreme Court case Elonis V. United States, in which Anthony Douglas Elonis was arrested for posting rap lyrics on Facebook that contained threatening statements.
Elonis violated a federal criminal statute that makes it a crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another,” The National Law Review reports.
He was convicted on multiple counts for threats, which he challenged in the Supreme Court based on his First Amendment rights. Elonis said that posting the graphic, violent lyrics about his wife, an FBI agent and children was a therapeutic and artistic expression, not an actual threat.
Recently, The Supreme Court reversed his convictions using the principle that “wrongdoing must be conscious to the criminal,” meaning that the mental state of the person involved matters, not just the authenticity of the threat, when deciding if the posts are a criminal offense.
This ruling does not touch on the intent behind posting threats online, which makes social media cases like this more of a criminal law issue than a First Amendment issue.
With this new ruling in place, could your Facebook posts still get you arrested?
Yes, you could still be arrested for posting threats on Facebook or any other online or social media platform. If your mentality was to cause harm and your threats were genuine you could be arrested.
Also, if you incriminate yourself online or your social media account’s location settings, online relationships or posts connect you to a crime, you could be arrested.
However, when it comes to posting threatening messages online, that act is not a federal crime without proof of your mental state.
