--- title: Supreme Court May Have Made Online Abuse Easier description: Ruling in favor of a man who posted violent messages on Facebook could set a dangerous precedent canonical: https://time.com/3903908/supreme-court-elonis-free-speech/ author: Soraya Chemaly article:opinion: true article:content_tier: free article:published_time: 2015-06-03T20:02:08.000Z article:modified_time: 2026-08-04T08:02:20.072Z article:section: Ideas og:title: Supreme Court May Have Made Online Abuse Easier og:description: Ruling in favor of a man who posted violent messages on Facebook could set a dangerous precedent og:url: https://time.com/3903908/supreme-court-elonis-free-speech/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt6382abbc8c95508b/698852e135ba6f3f96c0d8f3/supreme-court.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 og:image:width: 3420 og:image:height: 1924 og:image:alt: Supreme Court og:type: article twitter:card: summary_large_image twitter:title: Supreme Court May Have Made Online Abuse Easier twitter:description: Ruling in favor of a man who posted violent messages on Facebook could set a dangerous precedent twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/blt6382abbc8c95508b/698852e135ba6f3f96c0d8f3/supreme-court.jpg?branch=production&width=1200&quality=75&auto=webp&crop=16:9 ---  # Supreme Court May Have Made Online Abuse Easier > Sponsored content. 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A paid TIME subscription is separate and available at time.com/subscribe-agent. ### Sources * TIME Newsletters: [time.com/newsletters](/c/time-nl-inside-2026q3/newsletters?i=7650e380-fdc1-4dc2-ac9d-460165b185f8&cr=time-nl-inside-2026q3-v1) ## Video: Why the First Amendment is Foremost [Watch (HLS stream): Why the First Amendment is Foremost](https://cdn.jwplayer.com/manifests/QwfZCxc3.m3u8) (6:07)  _Published 2011-06-28. Why did the states want to ensure the Federal government did not establish a national religion? And why were the freedoms of press, speech and assembly so important to the Founding Fathers?_ by [Soraya Chemaly](https://time.com/author/soraya-chemaly/) and [Mary Anne Franks](https://time.com/author/mary-anne-franks/) Jun 3, 2015 8:02 PM UTC  Supreme Court Supreme Court Ryan McGinnis—Getty Images/Flickr RF by [Soraya Chemaly](https://time.com/author/soraya-chemaly/) and [Mary Anne Franks](https://time.com/author/mary-anne-franks/) Jun 3, 2015 8:02 PM UTC On Monday, the Supreme Court ruled in favor of a man who posted violent messages about his estranged wife on Facebook. The case, Elonis v. United States, garnered widespread interest and media coverage because it seemed to pose a question that the court had not considered before: whether “free speech” [means something different](http://www.npr.org/2014/12/01/366534452/is-a-threat-posted-on-facebook-really-a-threat) online. But the court skirted the First Amendment issue, choosing instead to decide the case on [statutory grounds](http://www.slate.com/articles/news%5Fand%5Fpolitics/jurisprudence/2015/06/anthony%5Felonis%5Fsupreme%5Fcourt%5Fcase%5Ffacebook%5Fthreats%5Fmust%5Fsurpass%5Fa%5Freasonable.html). The court ruled that a conviction for violating the federal threat statute cannot stand if it is based only the finding that a “reasonable person” would have foreseen that the statements would be perceived as threatening. Instead, the speaker’s subjective intent in making the statements has to be taken into consideration. The court’s narrow decision provides little guidance to courts struggling with the issues raised by threatening speech—online or offline—and raises troubling issues for victims of threats, especially in the context of domestic violence. After Elonis’s wife sought a protective order from him, he posted messages including, “There’s one way to love ya, but a thousand ways to kill ya,” “I’m not going to rest until your body is a mess,” and “Fold up your protective order and put in your pocket. Is it thick enough to stop a bullet?” Elonis also described a school shooting and a fantasy about killing a female FBI agent. He was indicted on five counts of interstate communication of illegal threats and sentenced to 44 months in jail. While the court did not go so far as to hold that a true threat turns on what the speaker intended to accomplish, the ruling suggests that the determination of what constitutes threatening speech rests with the speaker and not his audience. Looking to a speaker’s subjective intent might allow domestic abusers to create plausible defenses for themselves by claiming that they never really “meant” their threats as threats. Elonis explicitly characterized his speech as rap lyrics, saying that he was emulating rap artist Eminem, whose violently misogynistic lyrics include fantasies about killing his ex-wife and raping singer Iggy Azalea. He also suggested that the statements were a kind of therapy for him, a way of blowing off steam. These explanations seem intended to strip his words of context and provide a plausible defense. But context is key. Elonis was not a famous rapper doling out violent misogyny for the entertainment of a cheering crowd, or patient struggling with emotional upheaval in a private session with a therapist. He was a man seemingly angered by a woman’s decision to leave him. The context was highly suggestive of a domestic violence scenario, which all too often include psychological terrorism as well as physical violence. Domestic violence is a [system of control](http://www.domesticviolence.org/violence-wheel/) involving emotional, financial, and physical abuse, often involving coercion and threats. Elonis’s intent may or may not have been to kill his wife, but he certainly seemed to have the intent to control her through intimidation. Elonis’s threats must be understood in an environment where [40% to 50% of murdered women](http://www.nij.gov/topics/crime/intimate-partner-violence/Pages/extent.aspx) are killed by people they know well. In addition, the period immediately after a woman leaves a violent partner is often the most dangerous. It is during this time that men are [70 times more likely](http://www.dvipiowa.org/myths-facts-about-domestic-violence/) to kill their spouses. As Cindy Southworth, executive vice president of the National Network to End Domestic Violence, explained prior to the ruling, “This case isn’t about free-speech—it is clearly about brazen threatening speech. Any reasonable person would interpret direct threats to an estranged wife soon after a judge signed a protection from abuse order as what they were intended: threats. If the court decides against the reasonable person standard, I am very worried about any domino impact on stalking laws in states across the US that rely on a reasonable person standard.” There’s one bright spot in the decision: The court did not hold that the threatening statements Elonis made were protected by the First Amendment. “We were concerned that the court would hold that the First Amendment requires proof of subjective intent to convict a person of communicating a threat,” explains Sandra J. Badin, a coauthor of the [National Network to End Domestic Violence](http://nnedv.org/)’s amicus brief, filed in support of the government’s argument. “It would potentially have undone years of legislative progress, especially at the state level, to increase protections for victims of domestic violence.” The court’s ruling also does not mean that Elonis is in fact not guilty of making threats. If the case is retried, and the court finds that Elonis did have a subjective intent to threaten, his conviction will stand. During the oral argument in December, at least one of the justices was thinking about the potential for domestic violence abusers to go around the law. Justice Samuel Alito [observed](https://msmagazine.com/news/uswirestory.asp?ID=15351) that Elonis’s position “sounds like a roadmap for threatening a spouse and getting away with it. So you put it in rhyme and you put some stuff about the Internet on it and you say, ‘I’m an aspiring rap artist’ And so then you are free from prosecution.” Alito returned to this point in his [concurrence and dissent](http://www.supremecourt.gov/opinions/14pdf/13-983%5F7l48.pdf) in Elonis, noting that “threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.” It’s a pity that the majority of the Court did not appear to be listening. ## Transcript Congress shall make no law respecting an establishment of religion, Or prohibiting the free exercise thereof. Or abridging the freedom of speech. Or of the press. Or of the press. Or of the right of the people peaceably. Peaceably. Peaceably to assemble. And to petition the government for redress of grievances. And to petition the government for redress of grievances. There's something really sensibly first about our first amendment. Our whole system of government really depends on free speech and free press. Our Constitution and our Bill of Rights all harken back to what the colonists experienced under the monarch. In the course of the conflict leading up to the revolution Americans saw a genuine conspiracy in England to deprive not only Americans, but English citizens of fundamental rights of free speech and free press. [ SOUND ]. We just had a revolution, and so the Framers understood how important it was to have speech and assembly in order to foster revolution and keep the government honest. You can't have a democracy, you can't have a republic, you can't have elections, you can't really have a fair system of, of self government without free speech and free press. Congress shall make no law respecting an establishment of religion. Congress shall make no law respecting an establishment of religion Or prohibiting the free exercise thereof. Or prohibiting the free exercise thereof. One of the reasons that Americans have properly been adamant about the importance of separation of church and state is that Americans were and are an intensely religious people. And we also among us display a great diversity of religious belief. The diversity of religious belief is a potentially explosive and disruptive issue in our body politic. And, and the founding fathers, they knew that religion would cause nothing but disruption and trouble in politics were it to be enshrined in the Constitution. And indeed, the original First Amendment says Congress can't mess with religion, but actually, states are allowed to have established churches. Most colonies had state supported established religions in all of the southern colonies. The Church of England, the Anglican church was the established state supported church of those colonies. And New England it was the congregational church or the Presbyterian church. Basically some states has established churches, other states didn't have established churches and the First Amendment said, Congress butt out. Congress shall make no law. Congress shall make no law. Abridging the freedom of speech or of the press. Of the right of the people peaceably to assemble. Peaceably to assemble and to petition the government for a redress of grievances. [ SOUND ]. I think the First Amendment, more than almost any of the amendments, is a dissenter's amendment. Although many of the amendments over time get to be interpreted consistent with public opinion, the folks that win First Amendment cases are often the dissenters, Jehovah's Witnesses, Communists, or alleged Communists, the people that wanna speak back to the government and say this isn't right, you should change your policy. Lots of people don't like to see the American flag burned, but the court came to conclusion, despite legislation by the states and by Congress, that people have a right to burn a flag because it's a powerful message about disagreement with what the government is doing. So one may protest because of freedom of speech, but they may not protest and destroy the properties of others, and that's very important. The, the idea to protest against what the government is doing, and yet at the same time understanding that your protest has limitations as well. These First Amendment freedoms, which originally had been protected only against Congress, came to be protected against states because of the Fourteenth Amendment. States have to protect free speech and free press and also free exercise of religion. Before the Civil War, southern states made it a crime to preach against slavery, even in the pulpit. They had put preachers in prison, they had threatened them, literally, with capital punishment for preaching against slavery. Remember how the First Amendment began? Congress shall make no law abridging freedom. The Fourteenth Amendment says, states can't make any laws abridging freedom because after the Civil War it was clear that we needed a second Bill of Rights, a Bill of Rights against the states. And that's actually, really, the Bill of Rights that we have today. I truly believe the First Amendment has kept this country together. It's unified the country and it's kept it from battles over religion, battles over speech, battles that have taken place but it has not defeated the country. Freedom of speech, freedom of the press, petition, assembly. We get to tell government what to do. They are public servants. They work for us. They can't tell us to shut up. The First Amendment's deep, deep idea is here the people rule. 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