In a follow up to our previous post, the Supreme Court has now decided Elonis v. United States, reversing the conviction based on threats the defendant posted on Facebook against his ex-wife and others. The Court held it was error for the lower court to instruct the jurors that the defendant could be convicted if the posts would be considered by a reasonable person to be threatening, characterizing that standard as one of traditional civil negligence. The Court did not address the First Amendment issues concerning the criminalization of Facebook posts.
A recent article in the New York Times about the Silk Road prosecution – which has since resulted in a rather speedy guilty verdict on all counts – raised interesting questions about the presentation of internet evidence. The case involves allegations that the defendant, Mr. Ulbricht, set up and ran a black drug market on a secret, black part of the internet, the so called Tor network. The prosecution is seeking to introduce chat evidence of messages sent by the defendant. Some of the messages involve not simply words but also emoticons.
The prosecutor contended that these messages should be presented orally to the jury – the messages would be read and a notation made whenever an emoticon appeared, that is “emoticon.” The defense contended that they were not intended to be oral communications and should be submitted in writing to the jury. The judge agreed with the defense.
Interestingly, a case is currently pending in the Supreme Court that raises the question of the admissibility of a threat communicated with a face with a tongue sticking out; the defendant apparently claimed the emoticon showed he was joking.
Elonis v. United States, 730 F.3d 321 (3d Cir. 2013) (affirming the indictment and holding that there was sufficient evidence to show that the defendant’s website post regarding explosiveness was a “true threat;” and that defendant’s website post expressed intent to use explosiveness against agents, and was a “true threat”).