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Elonis v. United States: Internet Freedom and the World

Elonis v. United States: Internet Freedom and the World

Ryan A. Dahlgren

University of Nebraska- Kearney

Ford Clark

Communication Law

November 21, 2016

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Elonis v. United States: Internet Freedom and the World

There is always a risk that a criminal threat statute may be deployed by the Government

to suppress legitimate speech. But the proper response to that risk is to adhere to our traditional

rule that only a narrow class of true threats, historically unprotected, may be constitutionally

proscribed. (Elonis v. United States, 2015) This is how Justice Thomas ended his dissenting

opinion on the controversial 2014/15 court case Elonis v. The United States. While Justice

Thomas found himself on the outside looking in for this case, he did have valuable insight into

how and why the court thinks like they do. Speech, like many other things in the world, is merely

a tool which can be used for either good or bad, and for the longest time it was only conveyed

through face-to-face interaction. The advent of technology, however, has opened up a multitude

of ways we can speak and communicate to one another and the internet is the very latest in

humanities evolution of communication.

Many of these technological advances in our communication have occurred very recently.

The most notable have all happened within the last 125 years (Anderson, 2010), and the internet

just happens to be the newest. Throughout Americas history, numerous court cases have

presented precedents for future courts to follow (or change pending their discretion and likely a

Constitutional Amendment). There have been few cases dealing with the internet, however,

which has only been widely utilized publicly in the last twenty years (2010), but one very

notable case and likely the most pivotal one for free speech online, has already occurred.

Anthony Elonis was a disgruntled man unhappy with a number of things in his life, and

one of these happened to be a divorce he was going through. During this difficult time, Elonis

would often resort to blowing off steam on a popular social media site called Facebook. Elonis

considered himself somewhat of an amateur rapper, and like most in the profession, he chose a
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Elonis v. United States: Internet Freedom and the World

pseudonym to go by, Tone Dougie. Under this alias, Anthony Elonis took to Facebook where

he posted a number of seemingly troubling, offensive, and potentially threatening messages,

some of which were directed at his soon to be ex-wife, former employer, and even a classroom

full of kindergarteners.

Fold up your PFA [protection-from-abuse order] and put it in your pocket. Is it enough

to stop a bullet? (Barnes, 2014)

...Took all the strength I had not to turn the bitch ghost / Pull my knife, flick my wrist,

and slit her throat / Leave her bleedin from her jugular in the arms of her partner..."

concluding.. And if you really believe this s*** / Ill have some bridge rubble to sell you

tomorrow [BOOM!][BOOM!][BOOM!] (Totenberg, 2014)

These real quotes taken from Elonis Facebook page show how truly unnerving some of

the messages were. People would go on to describe them as downright despicable, and without

some extra context, thats exactly what they are. However, Elonis made mention numerous times

while posting that these words were fictitious, because many were lyrics from rap songs or

sketch comedy shows. Eminem is who Elonis specifically quotes numerous times and he would

even post links to the videos on YouTube where he watched and listened to them. At one point

Anthony quoted a sketch from an obscure comedy show called The Whitest Kids You Know,

which was poking fun at the fact that it isnt legal to say that you would kill the president.

Elonis decided to replace the word president with wife, for obvious effect.

Tara Elonis, his ex-wife, was clearly unamused by any of this, and actually feared enough

to get a protection-from-abuse order, which meant Elonis had to get more creative with his

posts in order not to direct them at her. As the posts continued though, Tara Elonis decided that
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Elonis v. United States: Internet Freedom and the World

she had enough and took her ex-husband, Anthony Elonis to court. Mr. Elonis represented

himself in court and was found guilty of transmitting in interstate commerce communications

containing a threat to injure the person of another on four of five counts, citing United States v.

MacEwan (2006) as the precedent used. The problem with this, however, was that while the case

did deal with the interstate commerce portion of Elonis v. United States, it was a case over child

pornography and not communication or threats between people.

After being sentenced to 44 months in prison after the June 2013 case, Elonis motioned

appeal his case due to the grand jury misinterpreting the definition of a true threat (United

States v. Elonis, 2013) In the appellate court, a number of landmark cases were used in deciding

to overturn the original verdict. Some of the notable ones include Black v. Virginia as well as

R.A.V. v. City of St. Paul. When dissecting these, it was found that while Elonis had used words

which could be construed as violent and as a threat, but what they did not find was reasonable

proof that Elonis would act on these so-called threats. Furthermore, they decided that the

specific case which was used as the precedent to convict Anthony Elonis was not a direct

reflection of what was occurring and would therefore need a closer examination by a higher

court.

Justice Alito granted the application on January 6, 2014, and on April 21 the Supreme

Court was in session to begin the most important Freedom of Speech case in the 21st Century.

The case took nearly a one and a half years to conclude, but in the end Elonis was acquitted and

the original verdict was overturned due to two specific reasons. The first being that the court

found no indication of Anthony Elonis mental state in his posting of these messages on

Facebook. The court stated that not only does the speech itself have to convey threat, but there

has to be proof of the mindset of the person posting, and that is something the court decided is
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Elonis v. United States: Internet Freedom and the World

nearly impossible to tell through online communication. The Supreme Court dissected this as

follows and concludes the decision:

Section 875(c) does not indicate whether the defendant must intend that the communication

contain a threat, and the parties can show no indication of a particular mental state requirement in

the statutes text. Elonis claims that the word threat, by definition, conveys the intent to inflict

harm. But common definitions of threat speak to what the statement conveysnot to the

authors mental state. The Government argues that the express intent to extort requirements in

neighboring Sections 875(b) and (d) should preclude courts from implying an unexpressed intent

to threaten requirement in Section 875(c). The most that can be concluded from such a

comparison, however, is that Congress did not mean to confine Section 875(c) to crimes of

extortion, not that it meant to exclude a mental state requirement. [] Section 875(c)s mental

state requirement is satisfied if the defendant transmits a communication for the purpose of

issuing a threat or with knowledge that the communication will be viewed as a threat. The Court

declines to address whether a mental state of recklessness would also suffice. Given the

disposition here, it is unnecessary to consider any First Amendment issues. (Elonis v. United

States, 2015)

The Supreme Court ruled in favor of Anthony Elonis 8-1 with Justice Thomas being the

lone dissenter. Justice Alito filed a portion concurring in part and dissenting in part, which leaves

some room for future cases, but as a whole, it seems speech on the internet will remain

untouched. In essence the court ruled that there must be proof that all words posted online must

be meant in a literal sense, and since a majority of online interactions occur amongst people we

dont know (Shaw, 2002) it would be impossible to show proof of this.

The Supreme Court looks at all free speech cases on a basis of if a reasonable person

were to look at the situation and draw the conclusion of it being a true threat. While at face value,
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Elonis v. United States: Internet Freedom and the World

and without context, these posts seem threatening; when including all information as well as

Elonis admittance to these posts being satirical, it can be deducted that there was no true threat.

In the Justice System, they say you are innocent until proven guilty, but more times than not

people are presumed guilty until innocence is actually proven, and this seems to be what

happened to Anthony Elonis in the lower courts.

This case ruling is certainly a victory for the internet, and all the users who access it, a

number estimated to be 3.2 Billion users worldwide (Parkes, 2015). In the United States 74.55%

of people use the internet according to the most recent World Bank survey. This means that all

those users can now rest easier knowing they are protected by Constitution, something which

couldve gone the other way pending a different Supreme Court decision. It is extremely

imperative that the internet stay a free place to exchange ideas, information, cat pictures, and any

other assortment things. While its great for America, there are places around the world which are

constantly attempting to stifle this freedom. Countries like Syria, Egypt, Iran, and China amongst

other second and third world countries are throwing journalists, bloggers, and even ordinary

citizens in prison for posting unfavorable content online. (CPJ, 2016)

It is easy for Americans to turn the other cheek towards affairs happening around the

world, especially in places like the Mid-West where the world seems so peaceful and easy, but is

extremely imperative that citizens advocate and promote good, not just at home but also abroad.

China is a place where freedom now seems to exist, as China slowly works its way away from its

more traditional and also communistic ways, but underneath the veil lies some of the harshest

anti-journalist laws in modern history. According to the Committee to Protect Journalists, it is the

number one country (amongst industrialized nations) in the jailing and prosecution of journalists.
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Elonis v. United States: Internet Freedom and the World

One would think China alone is to blame, and for normal press like newspapers or magazines, it

is primarily at fault, but what about press online?

Due to a majority of online sites originating in the United States (43% of the worlds top

sites according to pingdom.com), there seems to be greater control over the internet from here

than any other country in the world, and that is no exception in China either. What does this

mean? It means that even while users live in other countries, they still use a fair amount of

American websites. These websites operate differently in other countries, however, and many of

the companies enter agreements with governments which abridge the freedoms they allow.

(Goldsborough, 2016) This might seem okay to someone who doesnt much care for people

around the world, but as a country which stands by freedom, liberty, and justice, the United

States should not allow its companies and organizations to get away with this.

As the court case explained earlier, speech is guaranteed to be free online, but is it really

always free? Technically, yes, but companies still attempt to and succeed in finding loopholes

here in the United States. These loopholes are called gag clauses and they exist only to

suppress criticism or negative feedback on sites.

Some businesses are using non-disparagement clauses to unfairly silence critics. Most

consumers sign these agreements without noticing they effectively prohibit posting any negative

comments on sites like Yelp or Angies List. Gag clauses are typically buried deep in non-

negotiable contracts or even in websites terms of service, so consumers dont have a reasonable

opportunity to negotiate or refuse to accept the conditions. Only later, when they are slapped

with a demand that they take down a negative review or face legal action and potentially hefty

monetary damages, do people realize what they have unwittingly agreed to. (Goldsborough,

2016)
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Elonis v. United States: Internet Freedom and the World

Backhanded and sly techniques like this are not new to the world, human nature is almost

always to inherently gain an advantage over competitors, but these companies are not people,

and therefore shouldnt be treated as such. Morals and ethics dictate that this is not an honest

business practice, and on this basis alone it should be done away with. Robert Atkinson,

president of the Information Technology and Innovation Foundation, is attempting to get laws

passed which will keep companies from doing this. Not not only should companies be kept from

doing this in America, but the government needs also to stop allowing companies like Google,

Yahoo, and Microsoft (Alexander, 2009) abridge speech elsewhere. The Great Firewall is

infamous for this, and all of these companies and more help facilitate it.

China's internet filters and censors block all sites containing Chinese government opposition,

gay and lesbian information, and sexual content. The blocking of all sexual content websites does

not pertain to just porn sites. The Chinese government literally blocks all sites with the word

"sex" residing in the text. Gay and lesbian bloggers have been thrown in jail for "the perversion

of the Chinese internet with liberal and immoral ideas. (2009)

To get laws signed in like this certainly wont be easy, but it is something which needs to

be done to help promote free speech and press around the world. Anthony Elonis case helps

show to what extent speech online should be allowed to go, and now knowing this information, it

is time the United States stands by its motto of promoting liberty and justice for all. If

countries are alienating and imprisoning people for learning, venting, promoting, or simply being

curious, than our government shouldnt allow them to aid in this. If China or Iran wishes to do

business with American companies thats great, but as soon as the companies enjoying the

liberty, protection, and security of this country start performing activities considered illegal here,
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Elonis v. United States: Internet Freedom and the World

then they should no longer be allowed to do business with them. Either their website runs as it

would in the United States, or it does not run in that country at all, it should be that simple.

Likely passing a law that would require this would be difficult at best, but its something

that needs to be done to help stop the spread of corruption. A world with a free press and speech

is one which stops tyranny. Always be mindful of this, and take not when governments, business,

or people attempt to stop it. Its never for freedom, but almost always to prevent it.
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Elonis v. United States: Internet Freedom and the World

References

Anderson, C., & Wolff, M. (2010). The Web is dead. Long live the Internet. Wired Magazine,

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Barnes, R. (November 23, 2014). Supreme Court Case Tests the Limits of Free Speech on

Facebook and Other Social Media. The Washington Post. Retrieved 2016, from

http://www.highbeam.com/doc/1P2-37424468.html?refid=easy_hf

Bazelon, E. (November 25, 2014). "Do Online Death Threats Count as Free Speech? The

New York Times Magazine. Retrieved November 20, 2016

Alexander, B. (2009). Google, Yahoo, and Microsoft Suppressing Free Speech Online. The

Review: A Journal of Undergraduate Student Research. Retrieved November 21, 2016,

from fisherpub.sjfc.edu/cgi/viewcontent.cgi?article=1042&context=ur

Elonis v. United States. Supreme Court Case. July 6, 2015.

Goldsborough, R. (2016). The Freedom of Free Speech Online. Teacher Librarian, 43(3), 62.

Parkes, S. (2015) ITU releases 2015 ICT figures. ITU.int. Retrieved November 21, 2016 from

www.itu.int/net/pressoffice/press_releases/2015/17.aspx#.WDMaTLIrKM9

Press of Freedom (2016). Press Freedom Online. Retrieved November 21, 2016, from

https://cpj.org/

Totenberg, N. (December 1, 2014). Is A Threat Posted On Facebook Really A Threat? Retrieved

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Elonis v. United States: Internet Freedom and the World

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facebook-really-a-threat

SCOTUSBlog. (2015, July 6). Elonis v. United States. Retrieved November 19, 2016, from

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Shaw, L. H., & Gant, L. M. (2002). In defense of the Internet: The relationship between Internet

communication and depression, loneliness, self-esteem, and perceived social

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United States Court of Appeals, III Circuit v. Elonis. III District Court. September, 2013.

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IT.NET.USER.P2?locations=US