Elonis v. United States: The Doctrine of True Threats: Protecting Our Ever-Shrinking First Amendment Rights in the New Era of Communication

Abstract

The First Amendment protects one of our most precious rights as citizens of the United States—the freedom of speech. Such protection has withstood the test of time, even safeguarding  speech that much of the population would find distasteful. There is one form of speech which cannot be protected: the true threat. However, the definition of what constitutes a "true threat" has expanded since its inception. In the new era of communication—where most users post first and edit later—the First Amendment protection we once possessed has been eroded as more and more speech is considered proscribable as a "true threat." In order to adequately protect both the public at large and our individual right to free speech, courts should analyze a speaker’s subjective intent before labeling speech a "true threat." Though many courts have adopted an objective, reasonable listener  test, the U.S. Supreme Court now has the opportunity, in deciding Elonis v. United States, to take a monumental step in protecting the First Amendment right to free speech. By holding that the speaker’s subjective intent to threaten is necessary for a true threat conviction, the Court will restore the broad protection afforded by the First  Amendment and repair years of erosion caused by an objective approach.