ADL to Supreme Court: Targeted Statements That Instill Fear are not Protected Speech

New York, NY, October 7, 2014 … The Anti-Defamation League (ADL) has filed a friend-of-the-court brief with the U.S. Supreme Court in Elonis v. United States, a case that involves statements that cross the line between speech protected by the First Amendment and an unlawful “true threat.”

The brief argues that true threats should be unlawful, regardless of whether the State can prove that the speaker intended the statement as a threat. In the Elonis case, the defendant had posted threatening statements on Facebook about killing his estranged wife and dumping her body in a creek to make it look like a rape. He later said he did not mean the statements as a threat, but rather as a rant.

Christopher Wolf, ADL Civil Rights Chair and Counsel of Record on the Brief, and Deborah M. Lauter, ADL Civil Rights Director, issued the following statement:

We firmly believe in the importance of protecting free speech and freedom of expression. Certain types of speech, however, have such little value, and their costs to society so far outweigh their benefits, that they fall outside of constitutional protections. True threats are one example, and statements that threaten particular targets instill fear in victims and disrupt our social fabric.

In the Internet age, when it is much harder to discern someone’s intent without traditional cues, it is particularly important to draw a clear line between true threats and protected speech. A person should not be able to threaten someone else and then claim that he or she was just kidding.

The Supreme Court, which has consistently said that true threats fall outside of constitutional protections, should not protect targeted statements and social media posts that a reasonable person would understand to be a true threat.

The Washington, D.C. firm Hogan Lovells prepared the League’s brief. Frederick M. Lawrence, President and Professor of Politics at Brandeis University, was of counsel.

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