The Supreme Court of the United States of America (SCOTUS) ruled on June 1, 2015, that violent Facebook posts of a husband about killing his wife with a mortar launcher and blowing up FBI agents cannot be considered threatening if the author alleges he did not intend for it to be perceived that way. The decision had the effect of vacating the conviction of the husband on five counts of making threatening communications. He had been sentenced to 44 months in prison.

The crux of the decision was that the trial court had instructed the jury that the standard for determining whether the statements were threatening was a “reasonable person” standard and how a reasonable observer would take the message, rather than whether or not the speaker intended for the posts to be threatening. SCOTUS held that some sense of intent and wrongdoing was required to establish criminal conduct. The reasonable person standard would be appropriate for civil liability, but not for criminal liability and a criminal conviction for making threatening communications.

Justice Alito stated in his dissenting opinion that he felt the majority opinion would “cause confusion and serious problems” because there was no explanation by the majority as to what type of intent is necessary to elevate the posts to threatening enough to become criminal. The husband argued all along that he did not mean for the posts to be threatening.

The decision attempts to balance allowing what might be perceived as offensive speech protected by the First Amendment and speech that is intended to have an impact on the receiver. However, as pointed out by the dissenters, SCOTUS failed to provide a clear standard as to what intent is necessary for social media speech to rise to a criminal offense. The law in this area will continue to develop as social media issues wind their way through the court system.

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