Is It an Internet Threat or Protected Speech?

Posted on in Criminal Defense

Illinois defense attorney, violent crime, Illinois criminal lawyer, stalking, The justices of the Supreme Court of the United States recently heard arguments in an internet threat case that could have serious ramifications for First Amendment rights in our digital age. Anthony Elonis was convicted in 2011 of threatening his ex-wife and a kindergarten class (amongst others) through a series of Facebook posts. Some of these posts were rather graphic. According to his attorney, the posts were in the form rap lyrics and were a therapeutic exercise. The critical question for the U.S, Supreme Court to decide is whether Elonis’ statements violated laws against making criminal threats or whether his posts constituted free speech, and were therefore protected by the First Amendment.

Threat Laws in Illinois

Depending on the exact circumstances surrounding a communication such as Elonis’, a person who committed a similar act in Illinois could face charges such as cyberstalking (if the threat was communicated over the internet), stalking, or threatening a public official (for example). A “threat” can include any communication that indicates the speaker or communicator will:

  • Inflict physical harm on the person threatened or anyone else or any property;
  • Subject any person to confinement or restraint;
  • Accuse any person of a criminal offense;
  • Expose a person to hatred, contempt, or ridicule;
  • Harm the business reputation or credit of a person;
  • Reveal concealed information about a person;
  • Take action as a public official against a person;
  • Bring about or continue a strike or boycott;
  • Testify or refuse to testify concerning a legal claim; or
  • Other harm that “does not benefit the offender.”

Intent or Knowledge is Key in Illinois

 The key to a successful threat-based prosecution is showing that one communicating the threat intended to do so or acted knowing that the language would be perceived to be a threat. It a husband, for instance, to call his ex-wife on a number of occasions and utter statements about his intention to hurt or kill her, it would be hard for him to argue that his statements were not “threats” made intentionally or at least knowing that his statements would likely be perceived as threats. In other cases (such as Elonis’ case), where the statements were posted to a social media site or where violent-sounding statements were found scribbled on a piece of paper in a car, it becomes more difficult to show either intent or knowledge. Absent a showing of intent or knowledge, it becomes very difficult – if not impossible – for the prosecution to obtain a conviction.

Contact the Law Offices of Hal M. Garfinkel LLC, Chicago Criminal Defense Attorney

 Mr. Elonis’ case and others illustrate the need to obtain the advice of a skilled criminal defense attorney when you are charged with a threat-based offense in Illinois. The line between a threat and protected free speech is often a thin, blurry line and a decision rests on the facts of the particular case. Experienced Chicago criminal defense attorney Hal M. Garfinkel knows how to investigate and persuasively present the facts of your case. Do not allow someone to mischaracterize what you say or how you say it. When you are charged with communicating a threat to another, contact the Law Offices of Hal M. Garfinkel LLC, Chicago Criminal Defense Attorney at 312-629-0669 right away.
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