With Guest Blogger Kendra Yoch
In a recent decision, Elonis v. United States, the U.S. Supreme Court held that in order to convict a man for alleged threats made against his wife on Facebook, the prosecutor must show some level of intent. It was not enough to show that a reasonable person would have believed the man’s comments to be a “true threat.” There are strong arguments that this criminal case did not change the standard for schools to address student, staff, or community member social media comments in the school environment. However, school leaders should be ready for challenges by individuals disciplined or otherwise sanctioned for such comments based on arguments similar to those raised in Elonis.
Anthony Douglas Elonis was convicted under a federal law prohibiting communication of any threat to injure the person of another. After his wife had left him and taken their children, he began posting graphically violent rap lyrics on Facebook under the pseudonym Tone Douggie. Elonis posted disclaimers that the lyrics were fictitious, therapeutic, and an exercise of is First Amendment rights. But his wife took the threats seriously and obtained a restraining order. The lyrics included a question as to whether the restraining order was “thick enough to stop a bullet,” references to smothering his wife with a pillow and dumping her body in a creek, and, perhaps the most troubling reference for school leaders, the following:
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?
At the criminal trial, the jury was directed to consider whether a reasonable person have understood Elonis’s threats to be serious and, applying that “negligence standard,” found Elonis guilty. Elonis had argued that the prosecution should have to prove that he intended to send threatening communications, a subtle but critical difference. On appeal, the Third Circuit Court of Appeals affirmed the negligence standard applied by the jury—a holding that was in line with the majority of other circuits that have addressed the issue.
The Supreme Court took up the case, which as CNN reported was significant because it was the first time the Supreme Court has ruled on social media and free speech. The Court agreed with Elonis that it was not sufficient to show that a reasonable person would have believed the threat to convict Elonis of a crime. In what some commentators have called an unsatisfying move, the Supreme Court did not go further to provide a clear standard for establishing that a threat was sufficiently criminal for conviction. Although some level of intention by the speaker to threaten is required, the Court did not specify what level, which will likely lead to confusion as lower courts try to work out the right standard.
Takeaways for School Leaders
When a school district is considering taking action against a student, staff member, or community member for making online threats, the criminal standards addressed by the Court in Elonis do not apply. And the Court did not address any other contexts than the criminal context in the case. (Notably, although the Court references that Elonis was fired for social media threats against a co-worker, the Court did not look at that issue).
Nonetheless, as we have reported on this blog before, the standards that are typically applied in the student context are identical to that applied by the jury in this case. Specifically, courts have asked whether or not a reasonable person would believe the communication to be a threat. And a similar standard could be applied in cases where the threat came from a staff member or a community member. School districts should expect that because of the similarities of the standards at issue, those accused of threats in the school environment will at least attempt to rely on Elonis to argue that schools must establish an intent to threaten in order to discipline or otherwise sanction online threats. Only time (and a lot of court cases) will tell if and how such a standard might be applied in the school context.