Domestic abuse takes many forms, from the most obvious – physical assaults of a partner or child – to the more subtle – following a partner throughout the day, at work and at play. The Internet has added another dimension to domestic abuse, as it allows a partner to take what could be considered verbal or emotional abuse and broadcast it using Facebook, Instagram or other social media outlets.
Missouri has statutes that address domestic abuse and allow a partner to obtain an order of protection or allow the police to arrest an individual who follows through on threats of violence. But one complaint of the order of protection law is that it covers actions that may be annoying but not truly threatening. The U.S. Supreme Court may have given a legal lifeline to those who are trying to halt verbal threats before they become actual attacks.
In Elonis v. U.S., the Supreme Court had before it a criminal prosecution under a federal statute that made it a crime to transmit “any threat” to “injure the other person.” Anthony Elonis used Facebook, and after his wife left him, he decided to take to Facebook to express his feelings. After taking to listening to rap music, he began posting a variety of rap lyrics on his Facebook page, many of which began to appear like veiled threats to his estranged wife. He claimed all of the posts were just therapeutic for him, a way to express the pain of his loss. But others who viewed the posts had different views about statements like, “Did you know it is illegal for me to write I want to murder my wife?” and “I found that it’s incredibly 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.” Elonis’ estranged wife, now in fear for her life, obtained an order of protection and eventually the federal government prosecuted Elonis under the statute making the transmission of threats to injure another a crime. The jury received an instruction that it would be sufficient to convict Elonis if a reasonable person would have believed that the posts would be considered a threat. Elonis argued that the government should have to prove he intended the posts as a true threat rather than just therapeutic expression or protected speech. The jury convicted him and the case ended up before the Supreme Court.
In an opinion by Chief Justice Roberts, the Court held that the “reasonable person” instruction was not the right standard in a criminal context. Criminal statutes require a specific mental state, the intent to do harm. In this case, the jury instruction left out that mental state. However, the Court did not state how to define knowledge of the threat or the specific intent in this case, only that negligence is not enough. So, the Court left unresolved what would suffice and to what extent the First Amendment right to free speech could help a defense.
Does this undo any of Missouri’s attempts to protect victims of domestic violence? With regard to actual attacks, certainly not. With regard to threats over the internet, particularly cyberbullying, those statutes may need a closer examination to be sure they have the requisite mental state. It could be that this case will make some judges more cautious in issuing orders of protection, and it will almost certainly encourage more individuals to assert First Amendment expression as a defense.
As we have said on different occasions in different contexts, the Internet can be a dangerous place for anyone involved in a family law matter. We can think of no greater danger than the risk of actual physical harm from a partner, but we also understand that the line between venting frustration and a true threat can be a very gray area. After Elonis, we expect much more discussion about the actual line in that gray area.
If you have questions about the Internet and domestic abuse, contact us – we can help.