Supreme Court Left Important Questions Unanswered on What Constitutes a True Threat, ADL Says

New York, NY, June 1, 2015 … The Anti-Defamation League (ADL) today said that the Supreme Court’s decision 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,” left open many questions, including the scope of what constitutes a true threat in cyberspace.

ADL urged lower courts confronting this issue to find that recklessness in making threatening statements may be sufficient for a criminal conviction.

Christopher Wolf, ADL Civil Rights Chair, and Deborah M. Lauter, ADL Civil Rights Director, issued the following statement:

While the Supreme Court’s decision in this case made clear that a person cannot be held criminally liable for negligently making statements that place another person in fear for his or her life or personal safety, it left many open questions, and did little to clarify for the lower courts - and the general public - the scope of what constitutes a true threat.

In the Internet age, it is more important than ever to have clear standards that simultaneously safeguard free speech and protect victims of true threats that fall outside the First Amendment. Social media has allowed people to connect around the world, but it has also lowered traditional barriers to intimidation and true threats. Today, bullies can find their targets 24/7 without ever leaving their homes. Because people can act largely outside of the public’s view, there is often less pressure to comport with social norms that may in the past have curbed threatening behavior. 

In this case, the Supreme Court expressly left the door open for lower courts to find that recklessness in making threatening statements may be sufficient for a criminal conviction. We urge lower courts to find that it is, particularly in the context of true threats online.

ADL filed a brief in the Elonis case, arguing that true threats, which target particular individuals and instill real fear in their victims, should be unlawful regardless of whether the State can prove that the speaker intended the statement as a threat.

The Washington, D.C. firm Hogan Lovells prepared ADL’s amicus brief.