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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 introduction 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 real time 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, we need to be prepared to address vigorous legal 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 Victims 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 a $250,000 fine, to transmit any communication in interstate or foreign commerce containing a threat to injure the person of another.

In Elonis v. United States, 135 S. Ct. 2001 (2015), the Supreme Court addressed the proper construction of Section 875(c), in a prosecution undertaken by my office.

Anthony Elonis made a number of disturbing statements using a Facebook account, directed at his wife, his former employer, and state and federal law enforcement officers. The statements included:

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’

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, a 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.

The Supreme Court, however, determined that the trial court did not correctly instruct the jury regarding the required proof of intent. The trial judge had provided an explanation long approved in the Third Circuit and most other courts: that a “threat” is a statement that a reasonable person, in light of the full context, would interpret as a threat. The Supreme Court held that more proof of the defendant’s intent is required, concluding: “the mental state requirement in Section 875(c) 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.” Elonis, 135 S. Ct. at 2012. The Court left open the question whether recklessness on the defendant’s part is also sufficient.

Following Elonis, the Department remains committed – both in Elonis’ case and any matter involving threatening communications – to assure that Internet communications and all other means of communication via the mail or in interstate commerce are free of threatening messages. We must abide by the statutory construction set forth in Elonis, and also keep in mind the vital First Amendment protection of speech.

With regard to the First Amendment, Watts v. United States, 394 U.S. 705 (1969) (per curiam), 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.” Id. at 707. “‘True threats’ encompass those 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. . . . The speaker need not actually intend to carry out the threat.” Virginia v. Black, 538 U.S. 343, 359-60 (2003). In contrast, protected speech includes “political hyperbole” or “vehement, caustic, or unpleasantly sharp attacks” that fall short of true threats. Watts, 394 U.S. at 708 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).

When assessing whether a communication constitutes a true threat, context is important. Various 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.

In short, the importance of developing contextual evidence cannot be overstated. Anyone looking at postings today on Facebook, Twitter, MySpace, YouTube, and myriad other sites 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, or were not made with the threatening intent defined in Elonis. 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 the maker intended to communicate a threat, or knew his statement would be so interpreted, and not to make a constitutionally protected statement.

As the Supreme Court has recognized, “a prohibition on true threats ‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur.’” Virginia v. Black, 538 U.S. 343, 360 (2003) (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)). We must remain diligent in separating lawful speech from criminal conduct, and acting to protect the community from the harm that true threats present.

Updated July 20, 2015