Op-Ed: Facebook case: Does believing that a message is a threat make it so under law?

John P. Elwood, attorney for Anthony D. Elonis, who claimed he was just kidding when he posted a series of graphically violent rap lyrics on Facebook about killing his estranged wife, shooting up a kindergarten class and attacking an FBI agent, speaks to reporters outside the Supreme Court in Washington.
(Susan Walsh / AP)

The decision by a Missouri grand jury not to indict Police Officer Darren Wilson in the killing of Michael Brown turned largely on the issue of whether the unarmed man posed an immediate threat. And it pointed out how complicated, legally, the issue of what constitutes a threat can be.

Many of those who supported the grand jury decision in the Ferguson case felt that Wilson was obligated to act when confronted by a suspect he perceived to be a threat to public safety. But how does an officer make such a calculus in the heat of the moment? And does the fact that others might not perceive an unarmed teenager to be a threat matter?
According to decisions in previous cases that came before the Supreme Court, a police officer’s own perception of a threat must only be reasonable, not correct. When in doubt, the rulings have suggested, given the dangerous nature of their jobs, police officers have the authority to judge whether a threat is present.

Now the court is about to go deeper into the issue of threats as it considers a case involving the Internet. On Monday, the Supreme Court heard arguments in a case involving a Pennsylvania man.
When his wife left him in 2010, Anthony Elonis became extremely upset and began posting messages on Facebook, using rap lyrics that might suggest he planned to hurt his estranged wife, a kindergarten class and an FBI agent who instructed him to stop posting such messages.


Elonis was eventually convicted of communicating threats. He appealed, claiming that a subjective intent to threaten was a crucial element of whether he had committed a crime. He was merely expressing his anger and frustration, he insisted, and did not intend to threaten anyone. Federal courts applied Supreme Court precedent from an earlier decision, concluding that he did not have a 1st Amendment right to make a “true threat,” or one that a reasonable person would perceive to be a threat.
Now the Supreme Court must decide whose viewpoint matters: that of the defendant, who says he had no intent to threaten, or that of his estranged wife, who perceived his postings to be threatening. In reaching its decision, the court could resolve a lingering question that has been answered differently by different courts. Even experienced jurists, it would seem, are unsure exactly what a “true threat” is.

The Ferguson situation and the case before the high court revolve around the question of whether the recipient of a communication should be the determiner of whether that message or conduct is a threat.
The Supreme Court will first have to clarify whether a defendant’s intent is required to turn an expression of anger protected by the 1st Amendment into a “true threat,” under which 1st Amendment rights no longer apply. In so doing, the court will answer a crucial question: Does a communication automatically constitute a true threat if the recipient of that communication believes it is? If so, prosecutors will have an easier time proving their cases, but due process could suffer. Essentially, removing subjective intent from the definition of “true threat” would mean that only the perceptions of Wilson and Elonis’ estranged wife (or “reasonable people” like them) would matter. The actual intent or dangerousness of the defendant would be immaterial.

Whatever the court decides in the Elonis case, it won’t begin to resolve all the issues in the shooting of Brown. What happened in Ferguson raises many additional issues that need to be addressed directly. Should a police officer, by virtue of his training and the need to react instantly, receive the benefit of the doubt about whether an aggressor is a threat to public safety? Should we allow facts learned after an incident to enter into the calculus of whether an officer behaved appropriately? Do we need more defined, objective criteria to help peace offers make such determinations in the heat of the moment? If we make police officers solely responsible for determining whether something is a threat based on their subjective fears in tense situations, do we risk more shootings of unarmed individuals?
The purpose of the law is to put the public on notice by providing insight into which actions are prohibited and which are allowed as an exercise of 1st Amendment or other freedoms. To the extent that the definition of “threat” and the relevant party’s viewpoint about the existence of a threat are still unclear, the events of the last two weeks — both those at the Supreme Court in Washington and those in the grand jury proceedings in Ferguson — should shine light on that issue.

Lisa T. McElroy is an associate professor of law at the Drexel University Thomas R. Kline School of Law.Follow the Opinion section on Twitter @latimesopinion