After yesterday’s stunning 2016 U.S. presidential election results it is evident that the free speech elements of the First Amendment are being tested primarily via social media as voters post their opinions in various formats and tones, maybe in an effort to relieve some of their frustrations or to just vent.  However, could this type of speech potentially invoke the “true threat” exception to the First Amendment as codified? 18 U.S.C. § 871 (2012).  This statute covers: “Threats against President and successors to the Presidency,” and became effective in 1948 (based on 18 U.S.C. § 89 (Feb. 14, 1917, ch. 64, 39 Stat. 919)). However, much guidance does not exist relevant to what constitutes a true threat, especially when statements are made via social media.

The U.S. Supreme Court provided some guidance in Watts v. United States, 394 U.S. 705 (1969), where

[A] man, spoke out during a public rally against police brutality …. In 1966… saying in part …they always holler at us to get an education.  And now I have already received my draft classification . . . and I have got to report for my physical this Monday coming.  I am not going.  If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. . . .

The Supreme Court held that the defendant had not made a true threat because his statement was political hyperbole. Id. at 706. Political hyperbole is defined as “[A] principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 708 (quoting N.Y. Times v. Sullivan, 376 U.S. 254, 260 (1964)).  Are the statements that you make or that you see on social media political hyperbole?

The statute neither specifies nor defines writings to include those via social media, but, in a recent case, the Court appears to have expanded on the definition of true threat from Watts within the ambit of social media. Elonis v. United States, 135 S. Ct. 2001 (2015) (requiring showing that the defendant intended to issue threats or knew that his social media communications would be viewed as threats).

As you utilize various social media tools to vent or engage in political hyperbole, it may be worthwhile to look at some recent resources relevant to the “true threat exception/requirement”:

Books via Catalog @ Pace Law Library

• Judging Free Speech: First Amendment Jurisprudence of US Supreme Court Justices, edited by Helen J. Knowles and Steven B. Lichtman (KF9345 .J83 2015).
• Balancing Privacy and Free Speech: Unwanted Attention in the Age of Social Media (K564.C6 T86 2015).
• McGrady on Social Media (KF390.5.C6 M41 2014)

General Articles/Blogs

• True Threats
• When is an Online Post a “Threat” under 18 USC § 875
• Appeals Court Reinstates ‘True Threat’ Conviction Supreme Court Overturned, Still No Answers On First Amendment

Articles

• Brooks Fuller, The Angry Pamphleteer: True Threats, Political Speech, and Applying Watts v. United States in the Age of Twitter, 21 Comm. L. & Pol’y 1 (2016).
• Michael Pierce, Prosecuting Online Threats after Elonis, 110 Nw. U. L. Rev. 995 (2016).
• Megan Chester, Lost in Translation: The Case for the Addition of a Directness Test in Online True Threat Analysis, 23 Comm. L. Conspectus 395 (2015).
• Thomas DeBauche, Busting Bottles: Doubting the Objective-Only Approach to 18 U.S.C. Sec. 875(C) in Light of United States v. Jeffries and the Norms of Online Social Networking, 51 Hous. L. Rev. 981 (2014).
• Jennifer E. Rothman, Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol’y 283 (2001).

Bloomberg BNA via Pace Law Library:

• Lance J. Rogers, Justices Say Facebook Threat Prosecution Requires Proof Poster Had Criminal Intent Media L. & Pol’y Rep. (BNA), Jun 2, 2015.
• Lance Rogers, Exhorting Nonexistent Followers to Kill May Qualify as Prosecutable ‘True Threat’ Media L. & Pol’y Rep. (BNA), Feb. 3, 2015.
• Amy E. Bivins, Late-Night, Generalized Violent Rant On Yahoo! Board Wasn’t True Threat to Obama, Electronic Commerce & Law Report, Jul 27, 2011
• First Amendment—True Threats against President—Context of Threat, Crim. L. Rep., (BNA), Apr. 20, 2005.