Hastings Communications and Entertainment Law Journal


Following the Supreme Court's most recent ruling on the true threats doctrine in Virginia v. Black, significant conflict emerged among the federal circuit courts. On one hand, several circuit courts disagreed interpreted the holding in Virginia v. Black as a requirement of applying a subjective intent standard into all statutes that criminalize true threats. On the other hand, some circuit courts interpreted the holding as a requirement for prosecutors to prove that a reasonable person would consider the message as a true threat. A speaker's use of social networking websites and Internet forums for the purpose of posting violent and intimidating communications raises significant questions regarding the posture of the true threats doctrine and its application to modem modes of communication. In June 2014, the Supreme Court granted certiorari in Elonis v. United States, a true threats case involving posts on Facebook. The defendant, who posted violent messages in the form of rap lyrics and other pop culture references, argued that the trial court misread Virginia v. Black and violated his First Amendment rights when the court failed to instruct the jury to consider his subjective intent. This article examines the federal courts' treatment of Internet threats and discusses aspects of Internet speech that are particularly problematic for the true threats doctrine.