Does The Constitution Protect Facebook Threats?
A disgruntled ex-employee of the Dorney Park and Wildwater Kingdom, Pennsylvania theme park, is arguing that the federal cyberstalking statute is unconstitutional. He’s hoping the judge will agree and toss a criminal case in which he’s the defendant. Anthony Elonis lost his job at the park, and thereafter, posted some disturbing comments on his Facebook page. Included in his rants were allusions to initiating a shooting spree in a kindergarten class, a note to his ex-wife warning her that a civil protection order would not stop a bullet, and a short poem in which he talked about cutting the throat of an FBI agent who interviewed him in connection with the posts. The federal cyberstalking statute is located at 18 USC 875. It provides:
(c) 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.
According to Elonis’s lawyer, the statute is overly broad and punishes too much speech. He argues, “Given the astonishing breadth of Section 875(c) and the American cultural obsession with violence, the average citizen likely violates the law several times each day.” In other words, who hasn’t written a poem threatening to slit an FBI agent’s throat? Good luck with that one. The fact is, the First Amendment allows authorities to punish true threats. The key is whether the speech is really a true threat. Elonis is arguing that his posts were simply jokes (good thing for him there’s no law against having a really inappropriate sense of humor) and he meant no harm. Maybe he’ll prevail on that defense. But don’t bet the house on his constitutional challenge.