By: Jaclyn Collier
Since the beginning of the Internet, there has been a tug-of-war in the United States between First Amendment rights and protecting law-abiding citizens online. At the federal and state levels, cyberstalking statutes are designed to stop recurring or threatening behavior before it results in a victim being physically attacked. Generally speaking, the elements of cyberstalking require the offender to have intended to engage in repeated threatening or harassing behavior targeted at a specific person through the use of the Internet, email, or other electronic communications. Since cyberstalking threats primarily occur when the offender is not within the proximity to carry out the physical actions of that threat, the question becomes: when does something someone says on the Internet become cyberstalking?
Despite the fact that there are an estimated 850,000 people who are victims of cyberstalking each year, prosecutions for cyberstalking are relatively rare. There are a number of reasons for this, and one of them is illustrated in the facts of the 2015 Supreme Court decision, Elonis v. United States (135 S.Ct. 2001 (2015)). The defendant in this case used the social networking site, Facebook, to post rap lyrics he authored, which were graphic and extremely violent. In several instances, the rap lyric posts were about engaging in extreme forms of violence against his recently estranged wife. However, in each instance, the defendant claimed that his statements were not intended to be threats, but rather poetry and artistic expression (e.g., the rapper Eminem’s lyrics about killing his ex-wife). In Elonis, the Court squarely addressed the intent element of the federal cyberstalking statute and determined that cyberstalking requires the defendant to intend to issue threats or know that the posting or communication would be perceived as a threat. The Court decided that the defendant did not intend to issue threats because he was engaging in artistic expression and was not using those communications to threaten his ex-wife. Therefore, his posts were not threats, but rather communications protected under the First Amendment.
In the context of the law, part of what is so challenging about the anonymity of the Internet is determining what the intent was when the statements were made online: was it intended to be poetry, or was it something more sinister? In a sense, this case gives cyberstalkers a roadmap to engaging in cyberstalking because it walks through how to make threats without running afoul of the statutes by writing “poetry” and posting it online where the offender can make certain that the targeted person will see it. This decision could be sending the wrong message to potential cyberstalkers, but more importantly, it could be sending the wrong message to victims in that they may not be protected under cyberstalking laws because these thinly veiled threats may not meet the requisite intent to be considered cyberstalking under the federal statute. This could lead to further underreporting by victims.
In many ways, the courts are regulating online speech and conduct through decisions in cyberstalking and cyberbullying cases. Assuming that there will be more cyberstalking cases, although they may be few and far between, courts should consider whether the Elonis decision should be the high watermark for what is protected speech or lacking the requisite intent for cyberstalking. Courts should carefully review the intent element with juries to ensure that instances where there is an intent to harass and harm the victim are clearly and reasonably differentiated from artistic expression and speech protected by the First Amendment.
Jaclyn is a Staff Member of the Journal of High Technology Law. She is currently a 3L evening student at Suffolk University Law School. Jaclyn works at a financial services firm working on regulatory and compliance issues. She enjoys cooking, reading (thankfully), and hiking.