The U.S. Supreme Court is considering a ground-breaking case about threats made on Facebook by Anthony Elonis. The issue is whether death threats posted on the social media are protected free speech under the First Amendment. Judge Eugene Hyman discusses the case and the issues facing the Supreme Court.
As Judge Hyman points out, there first must be someone who feels threatened—the subjective part of the matter. Then there must be an objective part: is it reasonable that someone could have felt threatened? If these tests are met, there is a criminal threat case, which is what a jury found in this case. Another possibility in cases like these is a finding of attempted criminal threat, which the jury did not need to consider. The offense of attempted criminal threat requires a specific intent, which was not required in this case.
The government’s position has been that “a threat is a threat.” In this case, Elonis has argued that he didn’t mean what he said. Judge Hyman points out that, in most states, the law does not require that a defendant must have been able to carry out the threat in order for there to be a conviction, but only that the defendant meant what was said. The other thing, notes Judge Hyman, is that Elonis has tried to draw an analogy to comments made by rap stars, comments that are not criminal. This position did not prevail at trial.
Judge Hyman opines that the Supreme Court will sustain the conviction and will find that punishing threats like theses does not run afoul of the Constitution.
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.