Objective or Subjective Intent of Threats Made on the Internet

Since the advent of the Internet, people have utilized the veil of anonymity to say things they would never dare to in face-to-face conversation. Nowhere is this “internet tough guy” attitude more noticeable than in online gaming, social media, and message boards. Anyone who has ever played Call of Duty can tell you that the insults that get thrown around can be the most horrifying things you will ever hear. Quite often, insults turn to threats and it is not uncommon to hear a player threaten the life of another player. Of course, threats on the Internet are usually brushed off because there is no real intent behind them. However, can an Internet threat go so far as to become criminal?
This question has been answered with regards to interstate communication by 18 U.S. Code § 875. Section C states that “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” On its face, this language seems fairly straightforward. However, on its fall docket, the Supreme Court will decide the critical issue of which intent standard should apply.
The case being brought before the nations highest court is United States v. Elonis. Elonis posted threatening remarks on his Facebook account directed towards his ex wife. He moved to dismiss the charges against him, asserting that he had no subjective intent to threaten her. The Third Circuit instead decided that an objective intent to threaten, which is satisfied “when a reasonable speaker would foresee the statement would be interpreted as a threat,” is all that must be shown. Elonis, a rap artist, insisted that he was not serious and that his posts were lyrical. Either way, neither standard fits well in the context of the Internet.
To understand why neither standard fits, consider what makes an in-person and Internet threat different. First, an in-person threat allows the person being threatened to weigh several considerations in determining whether a real threat has been made against him. For example, if the aggressor makes his threat in a serious tone, is standing in an aggressive stance, and has a stoic facial expression, it is more likely that he intends his threat to be taken seriously. On the other hand, if he makes his threat in a sarcastic tone and with a smirk on his face, it is more likely that he intends his statement to be considered a joke. Second, an in-person threat has a level of imminence that is not present with an Internet threat. Where a threat is made on the Internet, the aggressor may not even know the real name of the person who they are threatening.
Imagine that a nineteen year old posted on his Facebook page that he would “shoot up a kindergarten and watch the blood of the innocent rain down and eat the beating heart of one of them,” but concluded by stating he was just kidding. Would the teen foresee that someone would interpret his comments as a threat when he clarified that it was joke? Even had he not clarified, does the fact that people regularly make joking threats on the internet affect whether he could foresee that his threats would be interpreted as true threats?

An objective standard suggests a uniformity of experiences such that people generally know when their statements cross the line.

Perhaps this is the case when we engage in face-to-face communications. There is no doubt that “internet tough guys” recognize that the things they say online would get them a punch in the face if said face to face. Perhaps there is less outrage at what is said on the Internet because people have become used to reading and hearing horrendous comments. Maybe people have come to realize that, after hearing hundreds of threats that never come to fruition, Internet threats are almost always a joke.
Amongst a group of teenage friends who play Call of Duty, it may be par for the course to threaten each other in vivid and disgusting ways. To them, their threats are obvious jokes. However, another user may take the threats quite literally. Is it reasonable to say that the teenagers should have foreseen that an unknown third person would take their comments seriously without any consideration of the context? That is the argument that Elonis hopes will win his case. He hopes that he can argue that as a rapper, his comments were, in context, just rap lyrics. His argument is not that outlandish because many other rappers, such as Eminem, have threatened horrible violence upon others in their songs.
An objective standard simply cannot account for the Internet culture that exists in this day and age. In the alternative, it is not as though the subjective standard is any easier to work with. Prosecutors, in the example of the nineteen year old, would have to prove that the teenager held an internal desire that his statement be taken as a threat. Perhaps in the realm of face-to-face conversation the subjective standard can work because a prosecutor can point to perceivable physical context clues like body language. However, on the Internet there is often no other context than the comment itself. Attempting to read into the thought process of people on the Internet is an exercise in futility and would result in few convictions.