Confronting First Amendment Challenges in Internet Stalking and Threat Cases


by Zane D. Memeger
U.S. Attorney for the Eastern District of Pennsylvania

Zane D. Memeger, U.S. Attorney for the Eastern District of PennsylvaniaCommunication over the internet has never been easier. With the addition of Facebook, Twitter, MySpace and YouTube over the last 10 years, our ability to share our thoughts, desires and actions with the outside world in realtime is a simple click away. While the internet can be a remarkable and valuable tool for purposes of exchanging artistic, political, religious and educational ideas that are protected by the First Amendment, it can also be a dangerous tool in the hands of those who seek to cause fear in others through threats and intimidation. As we continue to prosecute those who use the internet unlawfully to stalk and communicate threats towards others, one needs to be prepared to address vigorous First Amendment challenges that will be raised by defendants.

In January 2009 the United States Department of Justice's Bureau of Justice Statistics (BJS) released the report Stalking Victimization in the United States. According to the report—which defined stalking as "a course of conduct directed at a specific person that would cause a reasonable person to feel fear"—approximately 3.4 million people (14 in every 1,000 persons over age 18) were victims of stalking during a 12-month period in 2005 and 2006. Of those victimized, more than 1 in 4 reported that the stalking occurred in the form of e-mail (83%), instant messaging (35%), blogs or bulletin boards (12%), internet sites about the victim (9.4%), or a chat room (4%). Additionally, nearly 3 in 4 stalking victims knew their offender in some capacity.

A very important tool in our effort to combat stalking and threats via the internet is 18 U.S.C. § 875(c) which makes it a federal crime, punishable by up to five years in prison and $250,000 fine, to transmit any communication in interstate or foreign commerce containing a threat to injure the person of another. Section 875(c) prohibits the actual transmission of a threat, which is defined "objectively" as a statement which a reasonable person would understand as threatening bodily injury.

Consistent with judicial construction given to other federal threat statutes, § 875(c) applies only to "true threats" which are not protected by the First Amendment. This requirement was established by Watts v. United States, 394 U.S. 705 (1969) (per curiam), which held that a threat statute "must be interpreted with the commands of the First Amendment clearly in mind," and therefore be construed only to reach a "true threat" and not "constitutionally protected speech." Such protected speech includes "political hyperbole" or "vehement," "caustic," or "unpleasantly sharp attacks" that fall short of true threats.

When assessing whether a communication constitutes a true threat, context is importantVarious factors must be considered, including the following: the reaction of the person who received the threat; the history and relationship between the defendant and the victim; whether the threat was communicated directly to the victim; and whether the threat was conditional. By properly assessing these factors at the investigative and charging stages of a case, federal prosecutors can avoid, minimize and overcome defense arguments to the trier of fact that the defendant was purely exercising free speech rights protected by the First Amendment.

A recent example of the "true threat" versus First Amendment protected speech analysis can be found in the case of Anthony Elonis which was successfully tried this past October in the Eastern District of Pennsylvania. Prior to trial, the district court ruled that the "true threat" determination was a matter for the jury to decide. Accordingly, the district court refused to dismiss the indictment based on the defendant's claim that the following statements were entitled, as a matter of law, to First Amendment protection as "artistic impressions of art" by a rap artist:

  • Fold up your PFA [protection from abuse order] and put it in your pocket
    Is it thick enough to stop a bullet?

  • And if worse comes to worse
    I've got enough explosives
    to take care of the State Police and the Sheriff's Department.

  • 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?

  • So the next time you knock [FBI agent], 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'
    (BOOM!)

At trial, the evidence showed the context in which the foregoing threats on Facebook were made: they were made during a period in which Elonis lost his job with a local amusement park; Elonis’ wife left him and obtained a protection from abuse order for herself and their two children; and Elonis learned that he was the target of a criminal investigation when he was visited by the FBI. The evidence further showed that Elonis did not restrict the universe of persons who had access to his Facebook account. His “friends” included his former co-workers, former wife and the FBI.

Evaluating the statements in context, including testimony from Elonis’ ex-wife and an FBI agent about their fear of harm after learning of Elonis’ threats, the jury determined that a reasonable person would perceive the statements as true threats. The jury found Elonis guilty of using his Facebook account to threaten to kill his estranged wife, to threaten to injure employees of the state police and a local sheriff’s department, to threaten to injure a kindergarten class, and to threaten to injure an FBI agent.

While Elonis currently awaits sentencing, the importance of developing contextual evidence cannot be overstated. Anyone looking at postings today on Facebook, Twitter, MySpace and YouTube will quickly come across numerous postings that are crude, tasteless, disturbing and lacking in social value. Many of these postings, however, are arguably protected by the First Amendment. Accordingly, prosecutors and investigators must work together in the early part of a case to assess and develop the evidence which clearly demonstrates that a posting was made in a context in which a reasonable person would interpret the statement as a real threat to injure. By making this effort, it should be possible to separate protected speech from criminal conduct.