Prosecuting Online Threats After Elonis

Pierce, Michael | October 20, 2015

In the essay, Mr. Pierce discusses what, exactly, the government must prove before it can, consistent with the First Amendment, prosecute someone who posts threatening messages on Facebook. Last Term, a divided Court wrestled with this issue in Elonis v. United States, reversing the defendant’s conviction but leaving an important question unanswered: does the government need to prove that a speaker was reckless with his words or, alternatively, that he specifically intended them to be interpreted as threats? The essay suggests that instead of deciding which standard is best for all online threats, lower courts should adopt libel law’s distinction between public and private targets, and similarly apply a heightened mens rea standard only when the speech at issue targets public figures. A Facebook post containing violent language about one’s elected representative implicates free speech values in a way that an otherwise similarly threatening post targeting one’s ex-wife (like Elonis’s) does not.