Don't criminalize discussing violence on social media, SPLC-led coalition urges Supreme Court


Contact Frank LoMonte, executive director
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In a brief to the U.S. Supreme Court in a landmark First Amendment case, the Student Press Law Center urges the Court to set a high standard for criminally prosecuting speakers for references to violence on social media, warning of “false positive” prosecutions that may result from innocent misunderstandings.

The case, involving a Pennsylvania man convicted under a federal threat-speech statute for posts on Facebook in which he fantasized in graphic terms about killing his estranged wife and law-enforcement agents, marks the first time the Supreme Court will consider the boundaries of free-speech protections on social networking sites.

The Supreme Court is being asked to decide whether a person can be convicted of making threats based solely on the fact that a listener reports feeling threatened. A federal appeals court in Philadelphia allowed Anthony Elonis’ conviction to stand up even without evidence that the speech was genuinely meant as a threat.

In a brief filed Friday, the SPLC – joined by two other free-expression organizations, the Electronic Frontier Foundation and the PEN American Center – warned that speech on social media is prone to misinterpretation that might lead to the imprisonment of harmless speakers if a felony conviction requires no proof of wrongful intent. The brief was prepared by volunteer counsel from the law firm of Sutherland LLP, including Sean D. Jordan, Kent C. Sullivan, Peter Ligh and Travis Mock.

“[T]he original context of a message, understandable and benign to an intended set of initial recipients, may be misunderstood when republished to a different audience that is unaware of the message’s original context.,” the organizations said in the friend-of-the-court brief, which asks the Supreme Court to overrule the erroneous September 2013 decision of the Third Circuit U.S. Court of Appeals. “[C]omments, conversations, and other content created by and intended for young audiences is being read by older audiences who may not understand the vocabulary, social references, and other context.”

The brief cites examples of young people who have been disciplined or arrested over misinterpreted speech on social media, including Texas teenager Justin Carter, who was jailed for months after a graphically violent joke – made during an online chat about a video game with a fellow gamer – was taken out of context and misinterpreted.

“We have to get smarter about how we react to speech on social media. We can’t be putting kids in jail and giving them felony criminal records for wishing the school would burn down or sharing science-fiction stories that involve bombs and guns,” said attorney Frank D. LoMonte, executive director of the Student Press Law Center. “It’s fine for police to investigate and question the speaker when there’s a concern that a threat might be real, but once it’s recognized as a harmless joke, nothing is gained by throwing the speaker in prison.”

“We are grateful for the outstanding work of the Sutherland legal team that drew on the talent and expertise of top appellate litigators from the firm’s offices in New York and Austin,” LoMonte said. Founded in 1924, Sutherland LLP represents business clients around the world with 425 lawyers in offices in Atlanta, Austin, Geneva, Houston, London, New York, Sacramento and Washington, D.C.

The Student Press Law Center, an Arlington, Va.-based nonprofit provides legal assistance and advocacy in support of student journalists nationwide seeking access to information from schools and colleges. The Center provides free legal training and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at