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Online Threatening

July 17, 2015 | Posted In Criminal Law - Criminal Law

The internet connects people across countries, social groups and more. With almost universal access to communication using sites like Facebook, Twitter, Reddit and Instagram, our connections are becoming more and more electronic, and perhaps less and less personal.

It’s easy to speak your mind when you’re not face to face with someone and you can hide behind the protection of a computer or cell phone screen and some distance — which is why so many online forums host lengthy arguments and debates.

But when a person stops having a normal conversation and starts making threats or illegal plans, this could be considered criminal activity. Federal statute 18 U.S.C. Sec 875(c) has made it a crime to send interstate commerce messages that contain threats against another person and make mention of plans for injuring or harming that person in any way.

The Case
In a recent case, a Facebook user made threatening comments and posts to a wide variety of people in his area -- so much so that it gained attention from the FBI. Anthony Elonis made several posts on his Facebook page that contained threats to his ex-wife, school-aged children, local police officers and patrons and employees at the park in which he worked.

When the FBI was made aware of his activity, they created a decoy Facebook page, which an agent used to keep track of his online posts. After a visit from the agent to Elonis’ home, he posted threatening material about her as well.

Elonis was charged with five counts of transmitting threats online in violation of the federal statute and was convicted at trial. He was sentenced to a custodial term of four years, with three years of supervised release.

Physical Act vs. Mental Act
Every criminal act has two parts — the physical act and the mental decision to take that action. In order to charge a person with criminal activity, the act has to be committed with the accompanying mental understanding and state.

There are some criminal statutes that clearly outline what the mental state requirement is for a specific crime, using words like recklessly, knowingly, purposely, or intentionally.

However, the statute used to charge Elonis does not include such language about what the criminal’s mental state must be. In his case, the Court had to determine what mental state is needed to warrant the criminal charges and how best to instruct the jury about that mental state.

In his defense, Elonis cited the First Amendment’s right to free speech and said that his posts were “therapeutic,” and that he didn’t really mean them. However, the court’s ruling that those posts constituted online threatening and violated the federal statute has a far-reaching impact for everyone who uses social media to share thoughts, opinions and ideas.

Social media is used widely as a method of communication and expression. But if part of that expression has sinister or criminal undertones, users could find themselves facing charges for their posts. At Helmer, Conley, and Kasselman, PA, a New Jersey criminal defense attorney is prepared to represent anyone who has been charged with criminal acts online. For more information, call an HCK attorney today.

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