Supreme Court leaves women vulnerable: The unanswered questions in its ruling on online threats

The justices were presented with -- but didn't answer -- thorny questions about free speech and women's safety

By Katie McDonough

Published June 1, 2015 7:23PM (EDT)

                                                   (<a href=''>trekandshoot</a> via <a href=''>Shutterstock</a>)
(trekandshoot via Shutterstock)

The Supreme Court on Monday overturned the conviction of a man sentenced to 44 months in prison for posting several graphic threats about his ex-wife, his kids, his coworkers, local schoolchildren and an FBI agent, but the ruling dodged thornier questions about free speech and online harassment.

According to the 7 to 2 majority opinion, the “reasonable person” standard used to convict Anthony Elonis was "inconsistent with the conventional requirement for criminal conduct — awareness of some wrongdoing." The conviction “was premised solely on how his posts would be understood by a reasonable person” and such a standard "reduces culpability on the all-important element of the crime to negligence," Chief Justice John Roberts wrote for the majority.

As the Associated Press noted in a writeup of the decision, and as Justice Samuel Alito wrote in his concurring opinion that incorporated a partial dissent, the justices returned the case to a lower court rejecting the standard used for conviction, but may also have created more confusion about what standard should be applied.

Attorneys for Elonis had argued that the threats didn’t count as threats because their client said they were just a therapeutic creative exercise and parody. The argument was, in effect, that the government should take Elonis’ word for it when he testified that he wasn’t really planning on dismembering his ex-wife. But prosecutors in the initial case, as well as part of the government’s defense before the high court, argued that the conviction was justified because a “reasonable person” would feel threatened by the posts.

For those who are just hearing about this case for the first time, Anthony Elonis started using Facebook to communicate about graphic threats shortly after his wife left him in 2010. His posts, which he claimed were therapeutic, included one that said the following about his ex-wife:

‘'If I only knew then what I know now... I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.'’

Another post, in response to an exchange his wife had about their children’s Halloween costumes, Elonis said the kids should dress up as “matricide.” ‘'I don’t know what his costume would entail though. Maybe your head on a stick?'’

Elonis posted a series of similar threats, including threats against his co-workers, leading his ex-wife, Tara, to go to the police for an order of protection. A few days after the order was granted, Elonis, largely cribbing from a comedy sketch, posted the following message [sic]:

Did you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say. Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife. I’m not actually saying it. I’m just letting you know that it’s illegal for me to say that. It’s kind of like a public service. I’m letting you know so that you don’t accidently go out and say something like that

Um, what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. That’s illegal. Very, very illegal. But not illegal to say with a mortar launcher. Because that’s its own sentence. It’s an incomplete sentence but it may have nothing to do with the sentence before that. So that’s perfectly fine. Perfectly legal. I also found out that it’s incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. Insanely illegal. Ridiculously, wrecklessly, insanely illegal. Yet even more illegal to show an illustrated diagram.

He then posted a diagram.

These and other comments led to his arrest. Elonis was prosecuted under a law that makes it a crime to communicate a threat to another person through interstate commerce -- in this case, Facebook. During the trial, Tara testified that she didn't interpret Elonis' messages as parody. “I felt like I was being stalked," she said. "I felt extremely afraid for mine and my children’s and my families’ lives.”

With the conviction overturned, now the case goes back to a lower court, but it's unclear if there is more or less clarity about the case than when the justices first agreed to hear it.

The question of whose liberty should take precedent in such a case -- a man’s right to make “parody” threats about murdering his ex-wife or a woman’s freedom to not live in fear of such threats -- and the appropriate remedy, looms large. And if it was wrong to incarcerate Elonis for the posts, what, then, can be done to ensure that women receiving repeated, detailed threats of violence don’t have their own rights -- and physical safety -- trampled in the process of protecting the rights of others?

The justices opted on a limited ruling about the interpretation of a statute, but the case still raises essential questions about weird legalese (who is a “reasonable person,” what constitutes a “true threat”), tensions in free speech absolutism and the issues women face in their daily lives -- like the burden of living under the threat of violence and the ways that women’s speech and freedom of movement is stifled by online abuse.

While the Supreme Court may have avoided wading into the thorny question of free speech and personal safety, that doesn't mean others shouldn't be engaged with it. The current system tends to favor men like Elonis, and women are often left vulnerable to guess at which threats they should take as credible versus which they should shake off. And for a woman whose ex-husband claims he wants to cut her head off and put her body in the back of his car, taking a "wait and see" approach to which threats are real versus which are just blowing off steam may feel a whole lot like playing Russian Roulette.

Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at

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Free Speech And Gender Gender Gender Discrimination Scotus Women Women's Safety