Blog Post #24: Status Update: Facebook and The True Threats Doctrine

By Jeb Harmon

On September 15, 2014, Jaleel Abdul-Jabbaar of Washington State hit the “post” button on his Facebook page.[1] Angered by the recent incidents in Ferguson, Missouri, where a white cop killed an African-American teenager, Abdul-Jabbaar posted a photo of the officer, Darren Wilson, with the message, “this dude needs his house sprayed.[2]” In October 2014, Abdul-Jabbaar again posted on his Facebook page, “we the oppressed people need to kill this white cop.”[3] Abdul-Jabbaar posted to his Facebook page three more times, with one such message stating, “Ready to go and kill some cops,” and another message asking if anyone would “love” to go and return some bullets to officer Wilson or “we’ll return them to his wife and if not her then his children.”[4] The government charged Abdul-Jabbaar with five counts for transmitting a threat in interstate commerce.[5] On March 20, 2015, U.S. District Judge Robert Lasnik sentenced Abdul-Jabbaar to time served and to a supervised release, whereby his internet use will also be monitored.[6]Judge Lasnik found that Abdul-Jabbar’s posts were a strong reaction to the Ferguson shooting, but that Abdul-Jabbaar’s posts lacked the subjective intent necessary for a true threat.[7]

Abdul-Jabbar’s ban from using social media comes at a time where courts across the country are in flux over how to discern when a threat made online is real versus when such a social media post is simply an expression of free speech. The First Amendment’s Free Speech Clause prevents the law from infringing on the right to free speech.[8] However, such a right is not absolute. The Supreme Court of the United States first defined a true threat (under the True Threats Doctrine) as a statement where the speaker “means to communicate” his or her intent to commit and unlawful act of violence towards an individual or group.[9] The First Amendment does not protect true threats, yet when it comes to discerning a true threat, the circuit courts remain split on whether the subjective intent of the speaker or the objective assessment of the speaker or listener is what matters.[10]

Judges, legal scholars, and lawyers across the country are waiting for the Supreme Court to issue its opinion in United States v. Elonis, which may likely resolve this current circuit split over which test is best for examining true threats.[11] Anthony Elonis’s case came before the Supreme Court after the lower court found Elonis guilty for transmitting a threat in interstate commerce by posting violent messages about shooting his ex-wife on Facebook and slashing an FBI agent, despite Elonis claiming that his posts were rap lyrics.[12] But during oral arguments before the Supreme Court, Justice Alito challenged the claim that such posts were of an artistic nature and expressed concern in creating a standard that would overprotect threatening, online language by stating, “so you put it in rhyme and you put some stuff about the Internet on it and you say, ‘I’m an aspiring rap artist.’ And so then you are free from prosecution.”[13] It remains to be seen whether the Supreme Court will consider a new standard for online threats under the First Amendment, or if the Court will simply clarify what test is used to determine the realness of an online threat. 

The Supreme Court should consider calling for a hybrid subjective-objective test to be used for analysis of speech under the True Threats Doctrine, which is currently the test that the Ninth Circuit uses.[14]Under the subjective prong of such a hybrid test, the government must show that the speaker made the threat with the intent of creating fear of bodily harm or death for the recipient of that threat.[15] This hybrid test would prevent the chilling of free speech that would occur under a purely objective test. Under a purely objective test, a speaker may refrain from speaking out in fear that a reasonable person may interpret his words as a threat. There are other areas of First Amendment speech, such as cases with defamatory language used against public officials, which call for a subjective test to determine intent.[16] Especially with online speech, where context may be hard to determine, a hybrid test would strike a balance between protecting free speech and safeguarding citizens from real, online threats. 

When U.S. District Judge Robert Lasnik sentenced Abdul-Jabbaar to having his internet monitored, the judge said it was the most difficult decision he has had to make, but that he did not find Abdul-Jabbaar intended to harm Officer Wilson.[17] Abdul-Jabbaar, who suffers from mental health issues, told the judge that he would not make the same mistake.[18] But across the country, it remains to be seen whether the Supreme Court in Elonis will act to clarify a major circuit split that has left courts in flux with regards to threats made over social media. One thing is certain though, when the Supreme Court finally makes its decision in Elonis, many of us will likely hear about it first on Twitter or Facebook.

[1] United States v. Abdul-Jabbaar, Indictment as to Jaleel Tariq Abdul-Jabbaar (Dec. 11, 2014)http://www.plainsite.org/dockets/2jka3p8dl/washington-western-district-court/usa-v-abduljabbaar/.

[2] See id.

[3] See id.

[4] See id.

[5] See id.; see also 18 U.S.C. § 875(c) (2012) (making it a crime that is punishable up to five years for transmitting any communication in interstate or foreign commerce containing a threat to injure the person of another).

[6] Man who threatened to shoot Darren Wilson sentenced, Fox News, (Mar. 20, 2015) http://fox2now.com/2015/03/20/man-who-threatened-to-shoot-darren-wilson-sentenced/.

[7] See id.

[8] See U.S. CONST. amend. I (protecting the freedom of speech).

[9] See Virginia v. Black, 538 U.S. 348, 359 (2003) (citing Watts v. United States, 394 U.S. 705, 708 (1969)) (defining true threats in application to a state statute as “where the speaker ‘means to communicate a serious expression of an intent to commit an act of unlawful violence’ against a person or group of people,” but not stating if the definition applies to all federal threat statutes).

[10] See United States v. White, 670 F.3d 498, 509-10 (4th. Cir. 2012) (explaining that while most circuits use variations of an objective test, the Ninth Circuit uses a hybrid test under the belief that the true threats definition from Black requires a subjective intent standard as well in examining true threats).

[11] See Elonis v. United States, No. 13-983, 2014 WL 655474 (U.S. June 16, 2014) (presenting the issue as whether under Black, the true threats doctrine requires proof of the defendant’s subjective intent to threaten or if it is enough to show the objective reasonable person would view a statement as a threat).

[12] United States v. Elonis, 730 F.3d 321, 324-326 (3d Cir. 2013) (stating that Elonis argued that Supreme Court precedent required the jury to consider a subjective intent standard for public messages he posted on his Facebook wall, such as one message asking if his ex-wife’s protective order was “thick enough to stop a bullet?”).

[13] Dustin Volz, The Supreme Court Debates Rap Lyrics to Draw a Line on Criminalizing Online Speech, National Journal, (Dec 1, 2014),http://www.nationaljournal.com/tech/the-supreme-court-debates-rap-lyrics-to-draw-a-line-on-criminalizing-online-speech-20141201.

[14] See United States v. Bagdasarian, 652 F.3d 1113, 1117-18, & n.14 (9th Cir. 2011) (stating that the Ninth Circuit uses a hybrid test for true threats that examines both subjective intent and objective intent).

[15] See United States v. White, 670 F.3d 498, 524 (4th. Cir. 2012) (quotingBlack, 538 U.S. at 360) (stating that based on context Black only read subjective intent into the Virginia statute).

[16] See id. at 524-25 (4th. Cir. 2012) (Floyd, J., dissenting in part) (noting how a purely objective standard may lead to the chilling of speech out of fear of being misunderstood and giving the example of how extreme or violent rhetoric is often used with political speech because such language grabs attention).

[17] Man who threatened to shoot Darren Wilson sentenced, Fox News, (Mar. 20, 2015) http://fox2now.com/2015/03/20/man-who-threatened-to-shoot-darren-wilson-sentenced/.

[18]   Mike Carter, Kirkland man sentenced for threats against Ferguson cop, Seattle Times, (Mar. 19. 2015), http://www.seattletimes.com/seattle-news/crime/kirkland-man-sentenced-for-threats-against-ferguson-cop/.