OAJ Family Law Section Article July 2015
ONLINE THREATS AND CIVIL PROTECTION ORDERS
The potential reach of the U.S. Supreme Court’s recent ruling in Elonis v. United States
By: Chelsea Berger: Farlow & Associates LLC
A prospective client comes in to your office with several screenshots of their soon to be ex- spouse’s social media posts, containing messages they find personally threatening. What can be done? When do online statements cross the line to possible real-life danger? On June 1, 2015, the United States Supreme Court rendered an opinion that may be extremely relevant to the family law practitioner in these situations.
In Elonis v. United States, the Court considered online threats made on sites such as Facebook and Twitter. 135 S. Ct. 2001 (2015). When Elonis’ wife of almost seven years left him, taking with her the couple’s two children, Elonis began posting at length on Facebook in the form of “rap” lyrics which used “graphically violent language and imagery.” Id. at 2004-2005. Elonis claimed his lyrics were artistic expression, therapeutic and “fictitious,” with no intentional “resemblance to real persons.” Id. at 2005. However, Elonis’ posts included “crude, degrading, and violent material about his soon-to-be ex-wife” and others. Id. After viewing the posts, his wife felt “extremely afraid for [her] life,” and applied for and received “a three-year protection-from-abuse order” against Elonis. Id. at 2006.
A grand jury indicted Elonis for making threats against his wife and others in violation of 18 U. S. C. §875(c). Id. at 2007. That section states that an individual who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” is guilty of a felony and faces up to five years’ imprisonment. Id. at 2008. At trial, Elonis testified that “his posts emulated the rap lyrics of the well-known performer Eminem, some of which involve fantasies about killing his ex-wife.” Id. at 2007. He claimed that he had posted “nothing . . . that hasn’t been said already.” Id.
Elonis argued unsuccessfully to the District Court, and later to the Third Circuit that the jury should have been required to find that he intended his posts to be threats. Id. Both courts disagreed, upholding his conviction and sentence, with the Third Circuit holding “that the intent required by Section 875(c) is only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat.” Id. (citing
United States v. Elonis, 730 F.3d 321, 332 (3d Cir. 2013)).
In its majority opinion, the Supreme Court limited its review, refusing to touch on First Amendment issues. Id. at 2004. It found that Section 875(c) did not specify any required mental state, but that “wrongdoing must be conscious to be criminal.” As a result, it is necessary to “read into the statute the mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” Id. at 2009-10 (internal citations omitted). The Court, thus, reversed and remanded, holding that “Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.” Id. at 2004.
could convict him, and it did, if it found that what he wrote in his postings would be understood by
At Elonis’ trial, the jury was told that it
“a reasonable person” as a threat to his wife. Id.
Although Elonis involved the violation of a federal criminal statute, it questions what it
takes to consider an online posting a threat; therefore, courts may use it for guidance when
reviewing whether or not a protection order is warranted in domestic violence situations. As noted
in the Brief of the Domestic Violence Legal Empowerment and Appeals Project and Professor
Margaret Drew as Amici Curiae in support of the Respondent in Elonis, “threats are integral to most
domestic violence cases, and are typically at the top of the list of behaviors that protection orders
enjoin.” Elonis v. United States of America, 2014 WL 5035111 (U.S.), 26 (2014)(citing Lori A.
Zoellner et al., Factors Associated With Completion of the Restraining Order Process in Female
Victims of Partner Violence, 15 J. INTERPERSONAL VIOLENCE 1081, 1085–1088 (2000)).
Ohio’s domestic violence statute specifically highlights that threats warrant the need for protection.
Ohio Revised Code Section 3113.31. It states that “immediate and present danger of domestic
violence to the family or household” is good cause for a court to issue protective temporary orders
after an ex parte hearing, and further defines “immediate and present danger” as follows:
O.R.C. § 3113.31(D)(1)(emphasis added).
Furthermore, since “most protection order proceedings involve conduct which is independently criminal, judges in these proceedings are inevitably influenced by and cognizant of the criminal implications of the civil proceedings.” Domestic Violence Amici Curiae Brief, supra at 27. It is not uncommon for judges to reference the criminal law in adjudicating civil protection orders as the imposition of a protection order subjects the individual upon which it is served to possible criminal ramifications if violated. Id.
It is certainly worthwhile to be aware of the Supreme Court’s analysis in Elonis, and to use it when advising a client or when preparing for a protection order hearing. At the very least, providing subjective factors, such as that the individual made the post with the purpose of issuing a threat, or with the knowledge that it would be viewed as a threat, will add extra credence to your argument. And unfortunately, in this digital age, where a message is susceptible to misinterpretation and can easily reach a wide audience, the subjective test used in Elonis may eventually become the new norm.
O.R.C. § 3113.31(D)(1)(emphasis added).
Furthermore, since “most protection order proceedings involve conduct which is independently criminal, judges in these proceedings are inevitably influenced by and cognizant of the criminal implications of the civil proceedings.” Domestic Violence Amici Curiae Brief, supra at 27. It is not uncommon for judges to reference the criminal law in adjudicating civil protection orders as the imposition of a protection order subjects the individual upon which it is served to possible criminal ramifications if violated. Id.
It is certainly worthwhile to be aware of the Supreme Court’s analysis in Elonis, and to use it when advising a client or when preparing for a protection order hearing. At the very least, providing subjective factors, such as that the individual made the post with the purpose of issuing a threat, or with the knowledge that it would be viewed as a threat, will add extra credence to your argument. And unfortunately, in this digital age, where a message is susceptible to misinterpretation and can easily reach a wide audience, the subjective test used in Elonis may eventually become the new norm.
