The Supreme Court Just Made it Harder to Report Online Abuse

The Supreme Court just made it easier to violently threaten people online, reversing the conviction of a Pennsylvania man who was sentenced to 44 months in prison for making threatening posts on Facebook.

The justices ruled the government has to prove someone is serious about carrying out threats online before convicting them, but stopped short of saying how––and that's bad news for victims of online harassment, according to Carrie A. Goldberg, an attorney who litigates internet crimes like cyber harassment and revenge porn.

"It really feels like SCOTUS was trolling domestic violence survivors and current victims with this decision," she told Motherboard by email. "It's a giant setback for people who report threats to criminal authorities."

The Supreme Court ruling reversed the conviction of Anthony Elonis, a Pennsylvania man who was found guilty of transmitting a threat in interstate commerce after making a series of violent threats against his ex-wife, a co-worker, an unspecified kindergarten class, and an FBI agent investigating his threats.

He was convicted under the interpretation that "a reasonable person" would regard his posts as serious threats, but the justices ruled that standard was not sufficient to support a conviction, and that intent had to be considered.

"Elonis's conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of 'awareness of some wrongdoing,'" wrote Chief Justice John Roberts of the decision, which was ruled 7-2.

Goldberg said this leaves the interpretation of intent behind a threatening post in the hands of the very person who made it, making it extremely difficult to convict people for online harassment.

"A savvy threat maker who is prosecuted can claim he had no intent behind the threat, but was letting out frustration or soothing himself," she said. "It is up to the prosecutor to prove the offender's mental state which will be no easy task if the offender is claiming some other pretense."

However, others are framing it as a victory for freedom of speech online. Stephen Shapiro, national legal director of the ACLU, previously filed a brief in support of Elonis saying a ruling that regulated on online speech "without regard to the speaker¹s intended meaning" would be a threat to freedom of expression. He doubled down on that view in a statement following the Supreme Court ruling.

"Today's decision properly recognizes that the law has for centuries required the government to prove criminal intent before putting someone in jail," Shapiro said. "That principle is especially important when a prosecution is based on a defendant's words. The internet does not change this long-standing rule."

But Goldberg said SCOTUS "deliberately stepped over the issue of free speech," shying away from making a significant ruling on First Amendment rights.

"SCOTUS provides no guidance about what does and does not constitute harassment online. Instead it only ruled on the level of intent underlying the threat," she said. "Thus, abusers have a new tool for deniability if they ever are arrested for communicating a threat to injure another person."

Goldberg said the problem with the ruling is that the person who makes the threat on Facebook is the one who decides the intent. She said this ultimately puts more standard of proof on victims who say they feel threatened online.

"The corrosion of a law that protects victims of abuse invokes not only practical considerations, we must also consider the symbolic message," she said. "SCOTUS is taking something away from victims—the role of assessing risk and whether the threat of violence will actually be carried out—and giving yet more control to the abusers who can just deny that they intended the threat."

Goldberg said since the court declined to put a stop to online abuse in this case, the pressure is now on major social media platforms to enforce online decency. Elonis is apparently still on Facebook.

"All the major social media platforms ban threatening conduct," she said. "As private companies, they do not need to make the determination as to what the threat-maker's intent was. They get to create their terms of use and have the luxury of applying and enforcing those terms according to their own whims. They also get to decide whether to cast a blind eye on reports they receive or take them seriously."

"A serious response would involve banning the offender and adopting measures to ensure the ban is ongoing—and that the abuser does not simply adopt a new username," she added.

With the Supreme Court declining to take a stance on online abuse, the pressure is on major sites themselves to stop harassment, and some major platforms are stepping up. Reddit and Twitter both implemented anti-harassment measures in recent months.

Meanwhile, Elonis is currently back in jail after being arrested on April 28 for an unrelated domestic violence charge, according to WFMZ news.