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Supreme Court to Decide if Online Domestic Violence Threats are Protected SpeechSupreme Court to Decide if Online Threats are Protected Speech

Trigger Warning: Graphic descriptions of violence.

In November of 2010, a Pennsylvania court granted the wife of Anthony Elonis a protective order after he wrote a violent Facebook stating, in graphic terms, that he would kill her. After a jury trial, Elonis was convicted of making interstate illegal threats against others - a federal crime - and sentenced to 44 months in prison. But yesterday, the Supreme Court heard arguments that Elonis' conviction should be overturned because his online posts were not "true threats" but were merely online "rants" in the form of "rap lyrics" that were protected by the First Amendment.

"There's one way to love you but a thousand ways to kill you," Elonis posted that October about his wife. "I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave." Elonis had also posted statements on Facebook threatening to harm a coworker, employees of an amusement park, and law enforcement officers, and he posted about targeting a kindergarten class for "the most heinous school shooting ever imagined." Elonis admits that he made the online posts, but he says that he did not intend to threaten anyone.

Now, the Supreme Court must decide when something is a threat: when a reasonable person feels threatened, or when the person making the statement, here Mr. Elonis, intended the statement to be threatening. "How does one prove what's in somebody else's mind?" Justice Ruth Bader Ginsburg asked, quickly summing up the problem with making the speaker's intent the bottom line.

Elonis argued that he was clear on Facebook that he did not intend to harm anyone, citing a post where he said, "I do this for me; it's a therapeutic." Justice Alito was not convinced that this type of statement should shield other threatening posts, or discount the fear that a reasonable person may have felt upon reading the threatening statements, and responded that Eloni's argument "sounds like a roadmap for threatening a spouse and getting away with it."

"So you put it in rhyme and you put some stuff about the Internet on it," Alito said, "and you say, I'm an aspiring rap artist. And so then you are free from prosecution?" Alito also seemed concerned about the impact of Elonis' argument on domestic violence cases. "Well, what do you say to the amici who say that if your position is adopted, this is going to have a very grave effect in cases of domestic violence?" Alito asked Elonis' attorney. "They're just wrong, they don't understand the situation?"

"A threat is a threat, whether it is made online or offline," said Kim Gandy, National Network to End Domestic Violence (NNEDV) President and CEO. "Victims of domestic violence, for whom threats are often accompanied by other types of violence, take all threats seriously. Whether Mr. Elonis actually meant to kill his wife is irrelevant. His threats succeeded in doing what he intended, which was to further abuse his wife by making her fear for her life." This fear is very real. Three women are murdered by a current or former intimate partner every day in the US.

The Supreme Court will make its decision by the summer. NNEDV has filed an amicus brief in the case.

Media Resources: Supreme Court of the United States 12/1/14; US Court of Appeals for the Third Circuit 9/19/13; National Network to End Domestic Violence 12/1/14

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