June 2, 2015
“There’s one way to love you but a thousand ways to kill you.”
If your wife left you, and you wrote that post on Facebook, would it be construed as a threat? Certainly some people would see it that way, but the US Supreme Court has ruled that that type of social media post is not enough to get you convicted under federal threat statutes; yesterday (June 1) the Court overruled the conviction of Pennsylvanian Anthony Douglas Elonis.
Elonis posted that message above, along with other violent messages, to his Facebook page after his wife left him, and was subsequently convicted of threatening her and sentenced to 44 months in prison. Elonis claims that he was not threatening his wife, but simply writing rap lyrics that were not representative of his true feelings, and his lawyer argued that the lyrics should be protected under the right to freedom of speech.
The Court said the government needed to do more than prove that a reasonable person would find the postings threatening in order to convict Elonis. The Court did not squarely address the First Amendment issues raised by Elonis in trying to protect the threats imbedded in rap lyrics. The question is one of intent: Did Elonis mean what he posted or was he reckless in posting the choice content?
However, there is still a cautionary tale in this story: Just because Elonis’ conviction was overturned doesn’t mean he hasn’t paid a price for his social media posts. When people are in difficult marital or personal relationships, anger is not an unusual emotion. However, it’s best to not immediately vent your anger on social media.
So, as angry or frustrated as you may be, zip it when it comes to venting on social media about your ex, ex’s ex, mother/father of your child, in laws, etc. Maybe you won’t be convicted, but you could be the subject of a Protection from Abuse (PFA) order if you are blogging or posting about your ex in what could be perceived as a threatening way. And if there is other evidence of your threatening behavior toward an ex or other family member, that additional evidence of a social media post, whether it’s rap lyrics or just plain ol’ words, could tip the scales in favor of a PFA against you.
As they said in movie The Social Network, the Internet is written in ink. What you post will never completely go away, and it can come back to haunt you.
The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.
Visit Melissa M. Boyd's attorney profile.
Visit High Swartz's family law practice page.