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Elonis v. United States: at the crossroads of First Amendment and criminal jurisprudence in the digital age.

I. TRUE THREAT OBJECTIVE ANALYSIS                               115
        TO FIND THE REASONABLE PERSON ONLINE                    121
        UNMASK THE MAN BEHIND THE KEYBOARD                      125
        MEDIUM                                                  127
        THREATS                                                 130
        ELONIS V. UNITED ST A TES                               132
        OF JUSTIN CARTER                                        137
        AND A CONTINUED NEED FOR BALANCE                        139

"[E]very man--in the development of his own personality--has the right to form his own beliefs and opinions.... Hence, suppression of belief, opinion and expression is an affront to the dignity of man, a negation of man's essential nature." (1) The ink that our Founding Fathers used to pen the Constitution may have dried along with the dreams of equal ideas to barter and negotiate within our society's marketplace of ideas. (2) In recent years this ink has begun to fade, and the marketplace has closed its doors to the fringes of First Amendment protection.

While someone who shouts fire in a crowded theater has never been popular in the marketplace of ideas, (3) the Chaplinsky v. New Hampshire (4) decision began carving out entire classes of words, expressions, symbolism, and speech from the marketplace of ideas with a two-tier First Amendment theory. (5) The first tier is protected First Amendment speech that adds value to the marketplace of ideas. (6) The second tier, composed of unprotected speech, "[is] certain well-defined and narrowly limited classes of speech... [including] the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (7)

In 2003, Virginia v. Black (8) sought to scale back this two-tiered theory by holding that it is not unpopular speech that should be proscribed by state statute but only speech with intent to threaten. (9) Virginia focused on the issue of cross burning and held that a blanketed ban on all cross burning was unconstitutionally overbroad in that the statute limited not only unprotected speech but protected speech as well. (10) Virginia held that it was not the Court's job to judge morality or punish unpopular opinion, but to proscribe speech when speech went further than mere advocacy into the realm of true threats. (11) To determine whether cross burning constituted a true threat, the Court looked to the historical context of cross burning and found that cross burning may be political speech protected under the First Amendment. (12)

The marketplace of ideas, similar to many other markets, has moved online in the digital age. However, while many new markets face threats of hacking or data breach, the marketplace of ideas faces new First Amendment challenges to its afforded protection. James Madison and our Founding Fathers may never have envisioned the growth of the digital age and the new struggles between the chilling effects of First Amendment suppression and protecting victims of online threats, but such has been the theme in recent online First Amendment controversy.

In Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, context proved key and true threat analysis found its way to the Internet when the Ninth Circuit used a totality-of-circumstances analysis to determine that an objective reasonable person can find a pro-life website depicting abortion doctors as wanted posters was a true threat to the doctors' lives. (13) However, while a similar objective reasonable person analysis may help us in determining whether the speech is protected under the First Amendment, when we move into the fringes of the First Amendment to the gray area of true threats, a second-tier speech class, we are playing dangerously close to the realm of criminal law where courts criminalize the individual and not only the speech he wishes to convey.

In this intersection between criminal and constitutional law, between the First Amendment and criminal intent, we find Anthony Elonis, under his rap name Tone Dougie, and his charge of transmitting threats via his Facebook account. (14) While Elonis's rap pseudonym, Tone Dougie, may have committed a true threat to his respective audiences, the question remained whether Elonis had the requisite guilty mind consistent with criminal law analysis to be found guilty of transmitting such a threat.

Elonis believed "[a]rt is about pushing limits," (15) and he was "willing to go to jail for [his] constitutional rights." (16) When Elonis's ex-wife left with their children, and Elonis was fired from his job, he began posting violent lyrics that he claimed were therapeutic on his Facebook page. The lyrics violently detailed killing his wife, co-workers, an FBI agent, and committing a shooting in an elementary school. (17) As a result of his Facebook postings, Anthony Elonis was charged under Federal Statute 18 U.S.C. section 875(c), which makes it a crime to transmit any communication containing a threat to injure another. (18) However, the key to the interstate threat statute is not what is within the text, but what is in fact missing and what the Court in Elonis v. United States missed, the element of mens rea or a guilty mind, vital to a criminal conviction. (19)

Part One of this Note will address true threats by first tracing the origin and application of the true threat doctrine. This section will argue that the appropriate test to determine a true threat should be an objective reasonable person standard that examines whether the speech was political, expressly conditional, and the reaction of the audience to the speech. These three factors can be further analyzed using a contextual and historical analysis to determine the full scope of the content and whether it falls on the side of protected speech or unprotected true threats. (20) Through this totality-of-circumstances analysis, it will be evident that a true threat and not a fighting words doctrine is the more appropriate First Amendment framework to determine when content rises to the level of a criminal threat online.

After introducing the threshold true threat objective reasonable person analysis, Part Two of the will shift to whether Anthony Elonis had the necessary mens rea to be charged with transmitting a threat via the Internet. The mens rea criminal analysis will look to balance the right of the recipient of the alleged threat to feel safe with the rights of the accused to post controversial speech. I will begin to survey the mens rea landscape and analyze why negligence, an objective reasonable person standard, is both dangerous and ineffective when determining the mens rea of an online threat case.

In Part Three, subjective intent is proffered as the necessary mens rea required for online threat analysis. Additionally, this section will explore how the two highest levels of mens rea culpability--knowingly and purposely--would allow for speakers to mask their criminal intentions behind ignorance and thus create a haven for domestic abusers online. In Part Four, before constructing the recklessness standard used for regulating cyber-speech, the unique nature of the Internet as a communication medium and the challenges specific to online speech will be examined. Part Five will scrutinize the Elonis Court's failure to determine the mens rea standard for online threats and find that while the mens rea analysis does present challenges on the Internet, juries can use background content such as online behavior to help determine whether the speaker intended to post true threats. Ultimately, this Note will advocate for a fact-intensive totality-of-circumstances recklessness standard as the most appropriate balance between the rights of the accused and victims of perceived threats.

In Part Six, the objective true threat test and the subjective mens rea analysis will be applied to the facts of Elonis to find that Elonis's postings often constituted true threats and his behavior showed a reckless disregard towards the recipients of such alleged threats. Part Seven will analyze a recent online threat case where Justin Carter, an avid gamer, was accused of transmitting an online threat during a Facebook argument with a fellow League of Legends player. I will determine that while the First Amendment may or may not protect Carter's speech, Carter ultimately did not have the necessary recklessness mens rea to be criminally charged with transmitting a threat.

The conclusion will address some of the continued dilemmas we face in the digital marketplace of ideas and how a balance between the rights of the accused to be entitled to breathing space in their expression with the rights of victims to feel safe from threats is essential as the marketplace of ideas moves forward in the digital age.


The threshold question in an online threat case will ask whether the content in question falls under the first tier of First Amendment protection or one of the subcategories of unprotected speech. The definition of a true threat was first articulated in Watts v. United States. (21) In Watts, the defendant, during an anti-Vietnam rally, stated, "I am not going. If they ever make me carry a rifle the first man I want to get in my sight is L.B.J." (22) The Supreme Court reversed Watts' conviction and held that his statements were not true threats but mere political hyperbole. (23)

The Court looked at the context of the political speech, whether the statement was expressly conditional, and the reaction of the listeners to the defendant's speech. (24) It determined that in a context such as an anti-Vietnam political rally, the conditional statement, absent a specific time in which the defendant would attack and absent evidence that the audience reacted to the speech as a threat, could not constitute a true threat. (25)

True threat analysis was further articulated in 2003 in Virginia v. Black. In Black, the Court found that true threats "encompass... statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." (26)

Planned Parenthood v. American Coalition of Life Activists, a Ninth Circuit decision, proved a first attempt at analyzing true threats in the context of the Internet. (27) In Planned Parenthood, a pro-life activist offered an exhaustive list of more than 200 "abortionists" to anti-abortion leader Neal Horsley, who then posted the abortion doctors names on a section of his website labeled "Nuremberg Files." (28) Horsley highlighted the names of those doctors "murdered by anti-abortion terrorists by striking through their names on the list." (29) The Ninth Circuit in Planned Parenthood found a true threat when a "reasonable person [can] foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm." (30)

Since Planned Parenthood, various circuits have adapted several different methods in true threat analysis creating not only confusion for lower courts but also a circuit split. While some circuits have adapted an objective reasonable person standard, other circuits have added a subjective or hybrid subjective test to threat analysis. (31)

In 2013, the First Circuit in United States v. Clemens utilized the objective defendant vantage point standard of whether the defendant would have perceived what was said to the audience was a threat. (32) Contrarily, in 2012, the Sixth Circuit in United States v. Jeffries held that the intent must be "the effect on a reasonable listener of the speech." (33) Yet, in 2013, the Eleventh Circuit in United States v. Martinez held that, in general, "[a] true threat is determined from the position of an objective, reasonable person." (34) Furthermore, in 2004, the Fifth Circuit used a more general standard, writing, "[s]peech is a 'true threat' and therefore unprotected if an objectively reasonable person would interpret the speech as a serious expression of intent to cause a present or future harm." (35)

Instead of diving into the muddled water of the objective or subjective intent circuit split, the best solution is to tread above the waters by accommodating both sides of the intent debate. (36) If the objective reasonable person standard is applied while looking at the totality of circumstances elements presented in Watts and Black such as: 1) whether the speech can be deemed political; 2) the context of the speech including relevant history; 3) how the audience perceived the speech; and 4) whether the language can be perceived as conditional, it would allow the Court to first determine if the content in question is even protected by the First Amendment before moving onto any mens rea determination. If the objective standard determines that the speech in question is protected based on the totality of circumstances, then the case is closed and the speech deemed protected will not be proscribed.

The objective test determined through the totality of circumstances that surround the content and how the victim may have perceived the content in question can effectively help to alleviate some of the growing concerns of cyber abuse in the digital age. (37) One of the problems often noted for victims of online threats is the lack of avenues to help alleviate cyber bullying or harassment.

Congress' recent passage of section 230 of the Communications Decency Act provides websites including social media sites, blog hosting companies, and search engines with broad immunity from liability for user-generated content. (38) Furthermore, section 230 helps to shield platforms that have been created expressly for the purpose of revenge porn or anonymous gossip like Campus Gossip, that solicit a fee in order to take down content. (39) Ultimately, section 230 of the Communications Decency Act allows websites to turn a blind eye to a growing problem of online threat cases hiding behind the law when women continue to be victimized behind often-anonymous posts with only the offer to remove content by providing a fee to the very website that has allowed the abuse to occur.

One solution used by women advocacy groups is not legal pressure on websites hosting the content, but activism campaigns against the website or public shaming against the poster of the threat. (40) However, without the publicity or pressure placed upon websites in the day-to-day cases of harassment, online threats often go unnoticed and such harms can be very dangerous--even deadly. (41)

A 2011 Pew Center study found that eighty-eight percent of teenagers are exposed to social media postings showing cruelty towards another individual, while twelve percent of teenagers have seen instances of extreme cruelty towards others on social media. (42) Without the ability to turn to websites to help alleviate online threats or Congress who has in fact made it easier for threats to exist, as websites can now hide behind the law for protection from liability, (43) it should be the courts that effectively treat such a problem in society.

Although most states have cyber harassment laws and stalking laws, these laws often contradict one another and lack consistency for a victim to be aware of whether or not the facts of his present case are covered and protected by the law. (44) These state statutes "in the absence of an objective standard... may provide insufficient notice to ordinary citizens of what conduct is prohibited, particularly when the law utilizes general terms like annoying, harassing, and indecent." (45)

Additionally, states and courts have had difficulty determining the proper First Amendment analytical framework to proscribe harmful cyber-speech. The typical face-to-face argument in the physical world can be analyzed through the fighting words doctrine which proscribes "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." (46) Although prong one in the fighting words doctrine, that speech must consist of personally abusive epithets and insults, translates even better online than in the physical world because speakers can be more cruel behind a keyboard without fear of retaliation, (47) the three additional requirements are not applicable to cyber-speech. (48)

The fighting words doctrine requires the target of the speech to be directed at a specific individual located in such close proximity as to create a face-to-face confrontation. (49) The Court in Cohen specifically stated that fighting words encompass only speech amounting to a "direct personal insult" (50) and the State's desire "to prevent a speaker from intentionally provoking a given group to hostile reaction." (51)

This requirement of a direct personal insult does not translate over the Internet. While an audience may be likely to react from an online threat, there is not the requisite "likelihood that the person addressed will make an immediate violent response." (52) Online arguments are often played out over participants who would have to walk, drive, or take a plane to retaliate in person. Cyber-space does not provide the necessary proximate geographic threat between the speaker's vile words and the audiences' immediate retaliation to provide an effective analytical framework for hostile cyber-speech.

The best solution to solve doctrinal struggles and to prevent state statutes from being found to be overbroad is to implement the dual perspective of the victim and the alleged harasser through a true threat analysis, not a fighting words First Amendment analysis. If the threshold question from the perspective of the victim is whether one would perceive the speech as a threat based on a totality of circumstances, then the next question can shift to the perspective of the accuser and whether his actions and evidence of his actions can lead one to conclude he had consciously transmitted a threat. When courts are not left guessing how to interpret intent because both intent demands must be satisfied, it eliminates a law from being either too one-sided or too vague to the point where the victim is unsure if a claim is warranted.


"It is alike the general rule of law, and the dictate of natural justice, that to constitute guilt there must be not only a wrongful act, but a criminal intention." (53) In the first prong of the two-part interpretation of true threats, the objective reasonable person served as a gatekeeper to the marketplace of ideas. The reasonable juror analyzed contextually the alleged threat and perceived how he would feel if he were the recipient of the content in question. If he determined that the content could not be a perceived threat then the content would be free to remain online aided by the protection of the First Amendment.

But scales are meant to balance, and while the analysis should first turn to the victim of the threat and have the reasonable person determine the validity of the perceived threat, a subjective intent is needed to allow the accused to defend his content against the reasonable person who has only looked at the victim's side of the story. Furthermore, the reasonable person may not understand social media context or is unfamiliar with the elements of rap lyrics. It is within this framework that the mens rea subjective analysis must chill the potential snowball effect on the Internet of First Amendment suppression and analyze whether the accused's content rises to the level of criminal.

A criminal offense "involves not only an act or omission and its consequences but also the accompanying mental state of the actor [mens rea]." (54) The mens rea requirement of a criminal offense can be satisfied with one of four levels of culpability. Criminal negligence is the lowest level of culpability and the easiest to satisfy the mens rea standard, where "A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct." (55)

Negligence would fail to assist a true threat test because it would essentially be a strict liability standard in online threat cases. Negligence, because it is an objective standard, would depend solely not on the guilty mind of the accused, but on the reasonable person. (56) Essentially, the speaker would have to look over his shoulder as perhaps any speech he proposes, whether he consciously recognizes it or not, can be regarded as a threat by the objective person standard. (57) This fear of having one's content perceived as a threat may prove to be particularly problematic with rap lyrics and social media posts where, as the Student Press Law Center points out, such language can easily be misinterpreted and "speakers will be forced to tailor their messages to the sensibilities of the most delicate-eared and easily frightened listener[s] in the world." (58)

The Student Press Law Center further warns that such a negligence standard can have harmful chilling effects on free speech and instead advocates for a subjective intent to counter the multiple interpretations that occur online and provide breathing space for free speech. (59) Without such breathing room in online content, speakers can face prison terms based solely on misjudgments about the scope of their intended audience or how a potentially unintended recipient would react to the message of the content. (60)

A second major problem in an objective mens rea analysis online is defining the reasonable person. In the online realm and rap lyrics context, the question persists as to whether the reasonable person is a reasonable person of the general public or a reasonable teenager on the Internet. (61) The reasonable teenager is more likely to be exposed to rap lyrics and understand the context of rap music before assuming the lyrics rise to the level of a threat.

Furthermore, the reasonable teenager is more likely able to separate what is "online trolling" from a perceived threat, and understand the lingo of social media postings. Contrarily, the reasonable person in the general public may not be exposed to rap lyrics, (62) use Facebook, or understand the sarcasm that often accompanies online dialogue. (63)

The Student Press Law Center provides several risks in which a jury may often misinterpret cyber-speech. (64) The first risk is the persistent nature of online content. (65) Since online content will continuously remain on the Internet and be available endlessly for viewing, what may be perceived as in jest at one time in our society may be interpreted as a threat at a later time. (66)

The second risk presented is visibility. Cyber-speech is generally widely accessible and "designed such that sharing with a broader or more public audience is the default." (67) One possible solution that courts can utilize when interpreting cyber-speech is to determine the particular audience attempted by the speaker and whether there is evidence of targeting a specific individual.

If the speech is a direct message or is sent privately, for example in a group setting, this should lean toward a culpable threat. Contrarily, evidence of a general attempt to share content, for example on a newsfeed, may be more inclined to show an untargeted attempt at spreading a message and thus result in protected language. Additionally, if the poster has taken affirmative steps to prevent a particular individual from seeing content, such as blocking the individual from social media postings, this can provide evidence against the speaker having a guilty mind. (68)

The reasonable person standard can be particularly problematic online and in the context of violent lyrics. (69) Social media postings can easily be copied, pasted, and spread to audiences for whom the material was not intended. If cyber-speech is taken offline away from the social media platform to the courthouse, a jury can easily misinterpret the speech. (70)

The Student Press Law Center's amicus curiae demonstrates that in the case of internet speech, the context surrounding a particular statement on a message board or comments thread may be exceedingly thin or difficult to ascertain. (71) The result is that unless a defendant's subjective intent is taken into account, these lyrics may cause a juror, especially one unfamiliar with the rap genre or who holds negative stereotypes about rap music, "to falsely and incorrectly interpret rap lyrics as a threat of violence or unlawful conduct." (72)


A subjective intent provides an important procedural safeguard against the reasonable person unfamiliar with Internet lingo or violent lyrics. It allows for only those with a guilty mind to face the wrath of the law while allowing those who wished to share unpopular opinions online a second chance at having their content protected from threat statutes. However, while the Court was correct to identify a subjective intent as the necessary mens rea in threat analysis, (73) courts must be careful that subjective intent does not allow the online speaker to mask true intent behind ignorance or by stating that they personally did not find the cyber-speech threatening themselves as displayed in Elonis.

Elonis argued that he did not believe his ex-wife would perceive his lyrics as a threat. (74) Instead, Elonis felt that his lyrics were a form of therapeutic treatment to deal with pain surrounding his life. (75) Elonis's argument is essentially one of ignorance to the perceived threat and therefore proving intent under the two highest standards of mens rea, knowingly posting a threat or purposely posting a threat to his intended audience would become a nearly impossible burden to satisfy. (76)

The problem with the two highest levels of culpability, purposely (77) and knowingly (78) in online threat cases, is the speaker, upon being charged with transmitting an online threat, can simply state that he did not intend to create the threat or is surprised that the recipient would interpret the lyrics as a threat, knowing that one cannot read the mind of the accused to determine his true intent. The consequence is that the criminal threat statute would not support the victim from the harm of the threatening message itself which threat statutes are designed to prevent. (79) These harms from the threatening message include "fear, anxiety, loss of sleep, and disruption, regardless of whether the abuser intended to threaten or only intended to vent or to make a joke." (80) It would be a logical fallacy to say that content which threatens and harms a victim is protected because it provides a therapeutic or cathartic benefit to the speaker of the content. (81) Facebook and other social media platforms were used in one-third of the cases. (82) Therefore, to balance the rights of the accused who should be afforded a mens rea determination and to protect the victim from Internet threats, the proper mens rea standard is recklessness. (83)


While mens rea is key to a criminal conviction in our "brick and mortar world," before settling on the appropriate construction of the recklessness standard used for regulating cyber-speech, consideration of the unique nature of the Internet--particularly in both the medium that speech is transmitted and the challenges specific to online speech--must be explored in the mens rea analysis. (84) Online speech has fundamentally changed the manner in which people interact. It "has redefined how we talk to... one another, how we resolve conflicts, how we form friendships and communities, and how we perform our roles as citizens." (85) Before the Internet, personal exchanges of information allowed audiences to read the speaker's body language, detect sarcasm, or, as in Watts, react with laughter to speech. (86)

Today, the ability to hide behind a screen and circumvent all traditional nonverbal, visual cues, including the audiences' reaction to the speech, has enabled a transformation in the content of the speech itself and a great challenge for mens rea analysis. Now, when online communication is personally exchanged, the speaker can be crueler in the words used to a far greater extent than they would feel comfortable in traditional face-to-face dialogue. (87) The Internet has eliminated the speaker's internal sensors and allowed for threats without imminent retaliation, fear of the audience's reaction, or the need to look victims in the eye.

While the Internet appears to be a modern version of the traditional public forum, (88) similar to the physical world where citizens have access to public streets and sidewalks to access and promote speech, the Internet remains strongly influenced by private actors in its First Amendment scope. Private websites can proscribe speech through their personal terms and conditions that define what speech is acceptable on their site. (89)

For example, "Yahool's Terms of Service... prohibit users from making available content that is, inter alia, 'objectionable.'" (90) Likewise, Facebook's "Community Standards" policy that is designed to remove direct threats or criminal activity (91) has at times failed and removed non-threatening important marketplace speech on its site. (92) When the private website has the power to control speech or implements systems to eliminate certain speech it is very distinguishable from the sidewalk soapbox speaker publicly broadcasting in the traditional public forum, face-to-face with the audience.

Furthermore, even private online correspondence does not guarantee the same First Amendment rights as the speaker can expect in person. E-mail communication has greatly surpassed communication via the U.S. Postal Service. (93) However while the U.S. Postal Service adheres to First Amendment standards, (94) private servers responsible for billions of e-mails daily "monitor and censor the content of the e-mails that they are responsible for delivering." (95) For example, "at least 66 percent of U.S. companies monitor their employees' internet use, 45 percent log keystrokes, and 43 percent track employee emails." (96)

Although the government may be encouraged to regulate the Internet and create a modern public forum, the size and scope of the Internet would create endless problems. While in the physical world the government can use time, place, and manner restrictions to designate a certain time for protesters to picket or for speakers to speak, (97) websites simply cannot regulate all speech to ensure effective First Amendment application online.

While one may argue that the marketplace of ideas benefits from a healthy and endless diet of opinion, at a certain point a meaningful discussion becomes drowned out by endless cyber-speech either stating an opinion or introducing a new topic. Instead, the Internet should be moved away from this notion of the public forum or face-to-face interaction and analyzed somewhat closer to public broadcasting mediums such as the television or radio industry, though even with these broadcasting mediums contextual differences exist.

When Internet speech is scaled back from face-to-face dialogue to public broadcasting, the Internet has weakened the audiences' ability to apply background context to speech, significant for a mens rea analysis. (48) Unlike television or radio where speech is showcased from one source at a fixed time and sequence, Internet users can access speech from many different sources diluting the original background and intent of the speech."

Furthermore, while the online user has the ability to attach text to a desired social viewpoint, distinct to the online medium, "[t]he World Wide Web's underlying architecture" guarantees that the speaker's original intent is constantly cut, copied and pasted across hyperlinks in cyberspace. (100) The result insures that most users will have a relatively different interpretation than the speaker's original intent and, thus, presents a distinct challenge in a mens rea analysis. (101)


The Court's failure to follow the spirit of Black and determine when a speaker has the requisite mens rea in posting an online threat cannot be understated. The Elonis holding may chill speech, as speakers will remain unaware of the mens rea necessary for conviction. Contrarily, the Internet may become a haven where speakers can hide behind the bravado of Internet anonymity to spew vitriol without knowingly or purposely intending to harm their audiences.

While online context may seem almost completely unspecifiable, which was perhaps the reason the Elonis Court sidestepped the mens rea analysis, "it is not true that there is no shared background context available" to determine mens rea in online threat cases. (102) The jury's goal under a recklessness standard is to determine whether the accused had taken a substantial and unjustifiable risk that the recipient of the online content would view the material as a threat and whether the defendant's conduct in transmission of the content fell below reasonable legal standards. (103)

The recklessness standard thus requires an analysis of all relevant contextual factors, especially the defendant's online persona and behaviors, to determine whether a particular act is intended to intimidate. (104) This totality-of-circumstances analysis includes the context of the online discussion where the statement was posted; "the size and composition of the audience [viewing the post]...; the public image of the site...; and any prior [posts by the speaker] on the same site under the same user name...." (105) The focus of prior posts should include the time proximity to the charged statement, "similarity in content and tone," and "the availability of those prior statements to a viewer of the site encountering the charged statement." (106)

Furthermore, a jury can examine if "the speaker purposefully tied his message to an ominous social meaning." (107) For example, if violent speech is attached to a blueprint of the victim's home or a grotesque image, or, as in Planned Parenthood, the placement of abortion doctors inside wanted posters, this may provide evidence of a true threat. (108)

Although one may expect that the jury should determine whether the statement was a premeditated threat, (109) in the unique communication medium of the Internet, people should instead be thinking before pressing the enter key and blurting out heinous threats under the guise of ignorance. Similar to a face-to-face exchange where we refrain and hold back from every vitriol pursuit of spoken language we wish to invoke on an adversary, speakers online are still thinking of words to type, typing the words, given the opportunity to edit the words, before finally hitting the enter key.

With these safeguards, the defendant can therefore be ensured that social media misrepresentation or violent lyrics will not lead to conviction without specific facts leading the jury to conclude the defendant consciously disregarded transmitting a threat. Since the jury can use the facts surrounding the context of the online post, the defendant cannot hide behind his own personally cited purpose or knowledge and instead the jury may find guilt only from the defendant consciously disregarding his threat. (110)

Alito's concurrence in Elonis states, "Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway." (111) Mens rea analysis ensures that we cannot criminalize individuals unless they have the requisite guilty mind. When an individual, aware that the recipient of the online post can perceive the content in question as a threat, and proceeds to post the content anyway, a guilty mind has been satisfied and the individual's conduct may be proscribed. (112)


Anthony Elonis faced five counts under 18 U.S.C section 875(c), which makes it a crime to "transmit[] in interstate or foreign commerce any communication containing any threat... to injure the person of another[.]" (113) Count Two of the Government's charges against Elonis was for Facebook posts that threatened his ex-wife, Tara Elonis. (114) "[T]he basis for Count Two" was a posting on the Tone Dougie Facebook page in which Elonis displayed an "adaptation of a satirical sketch that he and his [ex-]wife watched together." (115) "In the actual sketch... [the] comedian explains that it is illegal for a person to say he wishes to kill the President, but not illegal to explain that it is illegal for him to say that." (116)

Elonis's post changed the script of the original sketch by substituting his wife for the President of the United States in the lyrics, followed by an accurate description of Tara Elonis's house, and a disclaimer with the original skit's link, and the line, "Art is about pushing limits. I'm willing to go to jail for my Constitutional rights. Are you?" (117) The lyrics read:
Did you know that it's illegal for me to say I want to kill my wife?...
Now it was okay for me to say it right then because I was just telling
you that it's illegal for me to say I want to kill my wife.... Um, but
what's interesting is that it's very illegal to say I really, really
think someone out there should kill my wife.... But not illegal to say
with a mortar launcher. Because that's its own sentence.... I also
found out that it's incredibly illegal, extremely illegal to go on
Facebook and say something like the best place to fire a mortar
launcher at her house would be from the cornfield behind it because of
easy access to a getaway road and you'd have a clear line of sight
through the sun room.... Yet even more illegal to show an illustrated
diagram, [diagram of the house].... (118)

Tara Elonis felt "extremely afraid for [her] life" after viewing the Tone Dougie post and was granted a three-year protection-from-abuse order, or essentially a restraining order, against Anthony Elonis. (119) Anthony Elonis then referred to the order in a post after it was granted:
Fold up your [protection-from-abuse order] and put it in your pocket.
Is it thick enough to stop a bullet? Try to enforce an Order that was
improperly granted in the first place. Me thinks the Judge needs an
education on true threat jurisprudence. And prison time'll add zeros to
my settlement... And if worse comes to worse I've got enough
explosives to take care of the State Police and the Sheriffs
Department. (120)

"At the bottom of this post was a link to the Wikipedia article on 'Freedom of speech.'" (121)

When Elonis' lyrics are analyzed they will likely lead a reasonable person to conclude that his speech is not protected by the First Amendment and rises to the level of true threats. Although political hyperbole may exist because Elonis analyzes the First Amendment right to free speech by replacing his wife with the President, this ultimately becomes a recklessly veiled attempt to slap on a First Amendment label. Elonis should have known that his ex-wife would perceive his lyrics as a threat because she had already been granted a restraining order against him for previous Facebook postings. (122)

Context proves key in the totality of circumstances analysis and statistics have shown that forty to fifty percent of murdered women are killed by people they know well, while women are seventy times more likely to be murdered in the period immediately after leaving an abusive relationship. (123) Further contextual evidence shows Tara Elonis feared for her life and that there was evidence that Anthony Elonis made sure his ex-wife saw the post. (124)

While courts should not criminalize harm that is too far attenuated from an actual crime, courts should proscribe what the purpose is of threat statutes in the first place: the threatening language to the recipient. Although Elonis may argue that Marshall Mather's, known as Eminem, has written similar lyrics about his ex-wife, Eminem's lyrics are performed for an audience or sold in record form, not posted on Facebook with detailed diagrams of his ex-wife's home and where she

would be in the house in the event someone wished to harm her. (125)

The second step of the proposed true threat analysis, a recklessness mens rea standard. It shows that Anthony Elonis crossed the threshold into recklessly disregarding that his lyrics were being interpreted as threats when he continued to post lyrics even after his wife was granted a restraining order, alerting him that she felt threatened by the Tone Dougie lyrics.

Shortly after Tara Elonis' granted restraining order, Elonis posted another entry that became the basis of Count Four in his indictment along with observations on a comedian's social commentary. (126) The lyrics stated:
That's it, I've had about enough. I'm checking out and making a name
for myself. Enough elementary schools in a ten mile radius to initiate
the most heinous school shooting ever imagined. And hell hath no fury
like a crazy man in a Kindergarten class. The only question is...
which one? (127)

Furthermore, in a historical context, a recent report released by the FBI studying 160 mass shootings found that seventy-four shooters have looked to past shootings as inspiration and have announced their shootings more frequently via social media just prior to the attack. (128) In another disturbing trend the FBI found that in thirteen of these cases, the attacker wished to surpass the carnage of the Columbine killing, (129) and here Elonis specifically states his desire to create the most "heinous school shooting ever imagined." (130) A reasonable person would perceive this threat as moving past simple political analogy and entering the realm of a true threat.

After the school shooting post, FBI Agent Denise Stevens visited Elonis at his house and questioned him about the Facebook posts. (131) Following the visit, Elonis posted another entry on his Facebook page, entitled "Little Agent Lady," which led to Count Five:
You know your s***'s ridiculous when you have the FBI knockin' at yo'
door Little Agent lady stood so close Took all the strength I had not
to turn the b**** ghost Pull my knife, flick my wrist, and slit her
throat Leave her bleedin' from her jugular in the arms of her partner
[laughter] So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it Cause
little did y'all know, I was strapped wit' a bomb Why do you think it
took me so long to get dressed with no shoes on? I was jus' waitin' for
y'all to handcuff me and pat me down Touch the detonator in my pocket
and we're all goin' (132)

Elonis seems more brazen in these lyrics posted immediately after the FBI visited him. While in his previous post, Elonis would accompany his lyrics with disclaimers; here he explicitly threatens an attack if the police are to return with a warrant. (133) Although these lyrics can be completely false, it is the threatening language that is in question, not how close Elonis may be to actually completing the actions perceived in the threat. Elonis consciously disregarded the fact that his ex-wife had perceived his lyrics as threatening or that the FBI was on notice that Elonis was posting threatening lyrics. Instead, Elonis recklessly posted the lyrics and therefore the prosecution can satisfy the mens rea standard of recklessness.


One theory behind why the Supreme Court punted on the mens rea analysis for online threat cases is that Elonis was "a bad vehicle for a very good question." (134) When the proposed true threat test is analyzed in another case where 19-year-old Justin Carter was accused of transmitting a threat via Facebook after a League of Legends (135) argument leaked onto the social media platform, a different outcome emerges. (136) Justin Carter's alleged threat began with a Facebook argument after another League of Legends player called Carter "effing crazy." (137) Carter responded by posting on a Facebook comment thread with the other player: "I'm f--ked in the head alright, I think Ima SHOOT UP A KINDERGARTEN AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN AND EAT THE BEATING HEART OF ONE OF THEM." (138)

One of the poster's in the Facebook thread responded contemporaneously to Carter's post by saying: "I hope you f-king burn in hell...." (139) Carter was then reported by one of the League of Legends players, whom he did not personally know, and Carter was arrested for transmitting the threat. (140)

In the first step of the proposed true threat analysis, Carter's content may not be protected under the First Amendment. While Carter's threat may be perceived as conditional because he says, "I think," Carter's home was within 100 yards of an elementary school and the post had occurred only months after the Sandy Hook shooting. (141)

However, all contexts are important in a true threat determination and League Of Legends is frequently known for this type of rhetoric when the conversations turn away from the game. (142) Unlike Elonis who openly used his lyrics as a forum to transmit violent lyrics to specific audiences, Carter transitions from lower case letters in what appears to be his serious tone to all caps commonly known as a sarcasm tactic online. (143) Ultimately, Carter would certainly be at risk of social media misrepresentation and it is here when the procedural safeguard of the recklessness standard can effectively serve to protect Carter from criminality.

In the determination of whether Carter recklessly disregarded the risk that his post would be interpreted as a threat, several facts support that Carter did not. His father describes him as "the kind of kid who didn't read the newspaper.... didn't watch television.... [and] wasn't aware of current events." (144) The testimony of Justin Carter's father shows that he may not have been aware of the Sandy Hook shooting or perhaps did not understand the gravity of the shooting in relation to his Facebook comment.

Contrarily to Elonis where Anthony Elonis's lyrics were directly pointed at his ex-wife, elementary schools or the female FBI agent who questioned him, Carter did not direct his threat to anyone in particular and did not personally know the recipient who had taken a screenshot and submitted the alleged threat to authorities. (145)

While Carter does state he will commit an elementary school shooting, he does not state a school in particular as Elonis had done with his ten-mile radius lyric. Additionally, Carter only posted a perceived threat in one comment thread. Contrarily, Elonis continued posting after becoming aware that his ex-wife and the FBI were interpreting his posts as threats. Furthermore, Carter regretted his post and "wasn't trying to scare anyone, [but] was trying to be witty and sarcastic." (146)

After Carter turned down a plea bargain sentence of eight years, he ended up in solitary confinement and on suicide watch pending trial (147) before an anonymous donor offered to pay his 500,000-dollar bail. (148) Three years later, after his arrest, Carter, now twenty-one, remains out on bail awaiting trial for his alleged threats. (149)


"I'd rather see you dead little girl than to see you with another man," Lennon Sings, "[r]un, run for your life." (150) While the reasonable person may never interpret Run for Your Life by The Beatles as a true threat, when we attribute the same lyrics to a rap artist or in a social media posting, the reasonable person likely will.

The strongest ally for the true threat analysis is context and while every jury member has their own personal biases and limitations when it comes to understanding the digital age, one can hope that a jury can analyze the historical context, reaction of the audience and the content itself when determining if an online post rises to the level of a threat. When social media is misinterpreted or violent lyrics misconstrued then it will be the safeguard of a recklessness standard that must be read to ensure the innocent mind remains labeled innocent. While "[a] fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech," (151) we must ensure that the fig tree of artistic expression is protected as vehemently as the day our Founding Fathers wrote the laws of freedom into existence. Contrarily, we must meet the digital age with intelligence and acknowledge that the Internet can easily become a haven for domestic abusers or others who wish to harm and threaten. We must acknowledge that women are disproportionately targeted online without recourse and we must ensure that we do not let true threats and warning signs pass constitutional muster on an "I didn't know" defense. It is a question that requires thoughts not only of the intent of the accused but how each of us, as the objective reasonable person, might wish to articulate and build upon the digital marketplace of ideas in our society.

Matt Kass (*)

(*) J.D. Candidate, Rutgers University School of Law--Newark, 2017; B.A., cum laude, Rutgers University--New Brunswick, 2012. I would like to express gratitude to my parents for their unwavering love and support. I would also like to thank Alexandra Slender for her encouragement and patience throughout law school.

(1.) Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 879 (1963).

(2.) U.S. CONST, amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.").

(3.) See Brandenburg v. Ohio, 395 U.S. 444, 456 (1969).

(4.) 315 U.S. 568 (1942).

(5.) Sergey Tokarev, Two-Tiered Theory of Freedom of Speech, U.S. C.L. (Sept. 17, 2012, 5:28 PM),

(6.) See id.

(7.) Chaplinsky, 315 U.S. at 571-72 ("[S]uch utterances [have] no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.").

(8.) 538 U.S. 343 (2003).

(9.) Id. at 358-59.

(10.) Id. at 351.

(11.) Id. at 366 ("It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings.").

(12.) Id. at 365-66.

(13.) Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal, of Life Activists, 290 F.3d 1058, 1064, 1078 (9th Cir. 2002).

(14.) See Elonis v. United States, 135 S. Ct. 2001, 2005 (2015).

(15.) Adam Liptak, On the Next Docket: How the First Amendment Applies to Social Media, N.Y. TIMES (June 30, 2014),

(16.) Id.

(17.) See Dahlia Lithwick, Are You Threatening Me?, SLATE (June 1, 2015, 5:10 PM),

(18.) 18 U.S.C. [section] 875(c) (2012) ("Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.").

(19.) Elonis, 135 S. Ct. at 2005.

(20.) Garrett Epps, Does a True Threat Require a Guilty Mind?, ATLANTIC (June 2, 2015),

(21.) Paul J. Larkin, Jr. & Jordan Richardson, True Threats and the Limits of First Amendment Protection, HERITAGE FOUND. (Dec. 8, 2014),

(22.) Watts v. United States, 394 U.S. 705, 706 (1969) (holding defendant's only offense "was a kind of very crude offensive method of stating a political opposition to the President").

(23.) Id. at 708.

(24.) Id.

(25.) See id.

(26.) Virginia v. Black, 538 U.S. 343, 359 (2003) ("Intimidation in the constitutionally proscribed sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.").

(27.) See David S. Cohen & Krysten Connon, Strikethrough (Fatalitx), SLATE (May 21, 2015, 3:38 PM),

(28.) Catherine E. Smith, Radical Animal Rights Activists Set the Stage for a First Amendment Showdown Over Harassment on the Internet, SOUTHERN POVERTY L. CTR. (July 27, 2005),

(29.) Id.

(30.) Id.

(31.) See Clay Calvert, Emma Morehart & Sarah Papadelias, Rap Music and the True Threats Quagmire: When Does One Man's Lyric Become Another's Crime?, 38 COLUM. J.L.& ARTS 1, 6 (2014).

(32.) See United States v. Clemens, 738 F.3d 1, 12 (1st Cir. 2013). The correct pin cite is page 12. Also, there is an incorrect version of this case in DropBox, so be careful.

(33.) United States v. Jeffries, 692 F.3d 473, 480 (6th Cir. 2012).

(34.) Calvert et al., supra note 31, at 22.

(35.) Id.

(36.) Elonis v. United States, 135 S. Ct. 2001, 2016 (2015) (Alito, J., dissenting) ("A threat may cause serious emotional stress for the person threatened and those who care about that person, and a threat may lead to a violent confrontation.").

(37.) See Soraya Chemaly, Supreme Court Makes It Harder to Convict for Online Threats, WMC (June 2, 2015), (finding Elonis innocent "would potentially have undone years of legislative progress, especially at the state level, to increase protections for victims of domestic violence").

(38.) See Sarah Kessler, Why Online Harassment is Ruining Lives--and How We Can Stop It, FAST' COMPANY (June 3, 2015, 6:00 AM),

(39.) Id.

(40.) See Alice E. Marwick & Ross Miller, Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape, FORDHAM CTR. ON L. & INFO. POL'Y REP. 15 (June 10, 2014) ("In this case, Facebook was under no legal obligation to remove the offending pages. They chose to do so for public relations and business reasons due to the large and successful activist campaign, which also targeted Facebook's advertisers.").

(41.) See Mary Anne Franks, Sexual Harassment 2.0, 71 MD. L. REV. 655, 658 (2012) ("Online harassment has various and wide-ranging harms: targets have committed suicide, lost jobs, dropped out of school, withdrawn from social activities, and decreased their participation in employment, educational, and recreational (including online) activities.").

(42.) Amanda Lenhart et al., Teens, Kindness and Cruelty on Social Network Sites, PEW RES. CTR. (Nov. 9, 2011),

(43.) Franks, supra note 41, at 688 (explaining one proposal to amend section 230 of the Communications Decency Act to include "a subsection that explains how website operators, as agents of effective control over websites and message boards, can be held liable for sexual harassment that produces effects in settings protected under current sexual harassment doctrine").

(44.) Aimee Fukuchi, Note, A Balance of Convenience: Burden-Shifting Devices in Criminal Cyberharassment Law, 52 B.C. L. REV. 289, 299 (2011) ("Although forty-six states now include electronic communications in their stalking and harassment laws, the status of American cyberharassment law remains inconsistent. State statutes feature differing causes of action, requisite mental states, and punishments.").

(45.) Id.

(46.) Cohen v. California, 403 U.S. 15, 20 (1971).

(47.) See Clay Calvert, Fighting Words in the Era of Texts, IMs and E-Mails: Can a Disparaged Doctrine Be Resuscitated To Punish Cyher-Bullies?, 21 DEPAUL J. ART TECH. & INTELL. PROP. L. 1, 4-5 (2010).

(48.) See id. (stating fighting words doctrine centers on four core elements: 1) content of the speech, 2) a specific target of the speech, 3) likelihood of reaction to the speech, and 4) imminence of the reaction to the speech).

(49.) See Lewis v. New Orleans, 408 U.S. 913, 913 (1972) (Powell, J., concurring).

(50.) Cohen, 403 U.S. at 20.

(5.) Id.

(52.) Gooding v. Wilson, 405 U.S. 518, 528 (1972).

(53.) Morissette v. United States, 342 U.S. 246, 274 (1952).

(54.) Mens Rea, ENCYCLOPAEDIA BRITANNICA (July 20, 1998),

(55.) MODEL PENAL CODE [section] 2.02(2)(d) (AM. LAW INST., 2015) ("The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.").

(56.) See United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997) (holding that only the reasonable speaker standard qualifies as a negligence based standard and is more appropriately characterized as a strict liability standard because it would allow a jury to convict a speaker "for making an ambiguous statement that the recipient may find threatening because of events not within the knowledge of the defendant").

(57.) See Jonathan Turley, Facebook Threats Case Still a Menace to Free Speech, USA TODAY (June 1, 2015, 7:08 PM), (finding that the Elonis decision was a victory and that "we avoided such a fatal shot [to freedom of speech], but it came close enough to part our constitutional hair [and] [u]nless we become more vigilant, the next attempt by the government could prove more lethal to liberty").

(58.) Brief for Student Press Law Center as Amici Curiae Supporting Petitioner at 25, Elonis v. United States, 135 U.S. 2001 (2015) (No. 13-983) [hereinafter Student Press Law Center 1],

(59.) See id.

(60.) See id.

(61.) See Adam Liptak, Chief Justice Samples Eminem in Online Threats Case, N.Y. TIMES (Dec. 1, 2014),

(62.) See Brief for Thomas Jefferson Center for the Protection of Free Expression et al. as Amici Curiae Supporting Petitioner at 8, Elonis v. United States, 135 S. Ct. 2001 (2015) (No. 13-983) ("[R]ap carries with it into court the heavy baggage of negative controversy and stigmatization; it is an entire genre of artistic expression prime for judicial and juror abuse.").

(63.) Id.

(64.) See Brief for Student Press Law Center et al. as Amici Curiae Supporting Petitioner at 11, Elonis v. United States, 135 S. Ct. 2001 (2015) (No. 13-983) [hereinafter Student Press Law Center 2] ("Consequently, those using social media are often 'on the record' to an unprecedented degree.").

(65.) Id.

(66.) See id.

(67.) Id. at 11-12 ("And because many popular systems require users to take active steps to limit the visibility of any particular piece of shared content, social media interactions are typically public by default, private through effort.").

(68.) Student Press Law Center 2, supra note 64.

(69.) See United States v. White, 670 F.3d 498, 525 (4th Cir. 2012) (stating the risk of criminal prosecution is especially great for those holding unpopular or controversial views whose "violent and extreme rhetoric, even if intended simply to convey an idea or express displeasure, is more likely to strike a reasonable person as threatening").

(70.) Jennifer E. Rothman, Note, Freedom of Speech and True Threats, HARV. J.L. & PUB. POL'Y. 283, 316 (2001) ("Punishing merely negligent speech will chill legitimate speech by forcing speakers to steer clear of any questionable speech.").

(71.) Student Press Law Center 1, supra note 58, at 6.

(72.) Brendan O'Connor, Why Are Rap Lyrics Being Used as Evidence in Court?, NOISEY (Nov. 3, 2014, 12:30 PM),

(73.) Elonis, 135 U.S. at 2011.

(74.) See Brief for National Center for Victims of Crime as Amicus Curiae Supporting Respondent at 12, Elonis v. United States 135 U.S. 2001 (2015) ("The practical impact of a subjective intent standard will not be to protect speech, but to protect threats.").

(75) Elonis, 135 U.S. at 2015.

(76) Id.

(77.) MODEL PENAL CODE [section]2.02(2)(a) (AM. LAW INST., 2015) (explaining that the individual acts purposely in regards to a material element: "(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist").

(78.) MODEL PENAL CODE [section]2.02(2)(b) (AM. LAW INST., 2015) ("A person acts knowingly with respect to a material element of an offense when: (i)the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.").

(79.) Kaofong Lee, Threats on Facebook: LOL, I Didn't Really Mean It, TECH. SAFETY (Oct. 17, 2014), (arguing that the subjective intent standard makes it difficult to prosecute offenders because some stalkers operate without the specific intent to cause the victim fear).

(80.) NNEDV Disappointed in Supreme Court Opinion, Though Hopeful the Lower Court Will Hold Abuser Accountable for Online Threats, NNEDV (June 1, 2015),

(81.) Id.

(82.) Brief for National Network to End Domestic Violence ct al. as Amici Curiae Supporting Respondent at 14, Elonis v. United States, 135 S. Ct. 2001 (2015) (No. 13-983).

(83.) See MODEL PENAL CODE [section]2.02(2)(C) (AM. LAW INST., 2015) ("A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.").

(84.) Thomas DeBauche, Bursting Bottles: Doubting the Objective-Only Approach to 18 U.S.C. [section] 875(c) in Light of United States v. Jeffries and the Norms of Online Social Networking, 51 Hous. L. REV. 981, 1008 (2014).

(85.) Id.

(86.) Id.

(87.) P. Brooks Fuller, Evaluating Intent in True Threats Cases: The Importance of Context in Analyzing Threatening Internet Messages, 37 HASTINGS COMM. & ENT. LJ. 37, 53 (2015).

(88.) Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (defining the public forum as "places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed").

(89.) See Dawn C. Nunziato, The Death of the Public Forum in Cyberspace, 20 BERKELEY TECH. L.J. 1115, 1121 (2005).

(90.) Id. at 1122 (citation omitted).

(91.) Community Standards, FACEBOOK, (last visited Sept. 26, 2016).

(92.) Michael Pizzi, The Syrian Opposition is Disappearing from Facebook, ATLANTIC (Feb. 4, 2014),

(93.) See DcBauche, supra note 84, at 1008.

(94.) Nunziato, supra note 89, at 1122.

(95.) Id. at 1122-23.

(96.) The Rise of Workplace Spying, WEEK (July 5, 2015),

(97.) See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) ("Our cases make clear, however, that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech.").

(98.) Caleb Mason, Framing Context, Anonymous Internet Speech, and Intent: New Uncertainty About the Constitutional Test for True Threats, 41 Sw. L. REV. 43, 72 (2011).

(99.) Kathleen M. Sullivan, First Amendment Intermediaries in the Age of Cyberspace, 45 UCLA L. REV. 1653, 1668 (1998).

(100.) Jordan Strauss, Context is Everything: Towards a More Flexible Rule for Evaluating True Threats Under the First Amendment, 32 Sw. U. L. REV. 231, 260 (2003).

(101.) Id.

(102.) See Mason, supra note 98, at 74.

(103.) See Justin Myer Lichterman, Note, True Threats: Evolving Mens Rea Requirements for Violations of 18 U.S.C. [section] 875(c), 22 CARDOZO L. REV. 1961, 1991 (2001).

(104.) See id.

(105.) Mason, supra note 98, at 74.

(106.) Id.

(107.) Strauss, supra note 100, at 266.

(108.) Id.

(109.) See id. at 265.

(110.) Brian Fung, The Supreme Court Just Made the Web Even More Hostile for Women, WASH. POST (June 2, 2015),"It also risks putting recipients of a threat under even more intense pressure. Having to evaluate the seriousness of a death or rape threat is a central part of the emotional stress of being threatened.").

(111.) Elonis v. United States, 135 S. Ct. 2001, 2015. (Alito, J., concurring).

(112.) See id.

(113.) 18 U.S.C. [section] 875(c) (2015).

(114.) Elonis, 135 S. Ct. at 2005.

(115.) Id.

(116.) Id.

(117.) Id. at 2006.

(118.) Id. at 2005-06.

(119.) Id. at 2006.

(120.) Id.

(121.) Id.

(122.) Nina Totenberg, Is a Threat Posted on Facebook Really a Threat?, NPR (Dec. 1, 2014, 4:01 AM), ("[Tara Elonis] would read this and think, this is not an artistic statement, this is not a political statement about a larger cause.... This is trying to get inside her head and make her think there could be someone doing violence to her.").

(123.) Soraya Chemaly & Mary Anne Franks, Supreme Court May Have Made Online Abuse Easier, TIME (June 3, 2015),

(124.) Id.

(125.) Elonis, 135 S. Ct. at 2006.

(126.) Id.

(127.) Id.

(128.) J. Pete Blair & Katherine W. Schweit, A Study of Active Shooter Incidents in the United States Between 2000 and 2013, FBI 5-21 (2014),

(129.) See id.

(130.) Elonis, 135 S. Ct. at 2006.

(131.) Id.

(132.) Id. at 2006-07.

(133.) See id.

(134.) Sarah Jeong, The Supreme Court's Elonis Decision Isn't a Victory for Trolls, VERGE (June 11, 2015, 3:22 PM),

(135.) See generally Karyne Levy, What It's Like to Play League of Legends, the Game Where the Best Players Have Millions on the Line, Bus. INSIDER (Feb. 6, 2014, 5:47 PM), (explaining how League of Legends is an online computer role-playing game that involves constant interaction between players).

(136.) See Mac McCann, Facebook 'Threat' Case Unresolved, AUSTIN CHRON. (Feb. 28, 2014),

(137.) Mark Burnham et al., Gamer Justin Carter's Attorney Takes Us Inside Contentious Arrest, BlDBlC.COM, (last updated Sept. 11, 2013, 9:06 AM).

(138.) Id.

(139.) Id.

(140.) Id.

(141.) See id.

(142.) See William Boardman, Justin Carter: Criminalizing Free Speech. Facebook "Terrorism" in Texas, GLOBAL RES. (July 13, 2013),

(143.) Gretchen McCulloch, A Linguist Explains How We Write Sarcasm on the Internet, TOAST (June 22, 2015),

(144.) Boardman, supra note 142.

(145.) Id.

(146.) Zeke MacCormack, Facebook Threat Case Back on Track for Trial, SAN ANTONIO EXPRESS-NEWS (Sept. 4, 2015),

(147.) Boardman, supra note 142.

(148.) Jason Schreier, Anonymous Person Posts $500k Bail for Jailed League of Legends Player, KOTAKU (July 11, 2013, 4:08 PM),

(149.) MacCormack, supra note 146.

(150.) Nina Totenberg, Is a Threat Posted on Facebook Really a Threat?, NPR (Dec. 1, 2014, 4:01 AM),

(151.) Elonis v. United States, 135 S. Ct. 2001, 2017 (2015).
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Date:Mar 22, 2017
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