Can Social Media Speech Violate Protection-From-Abuse Orders?

Originally published in the June 30 issue of The Legal Intelligencer

When the U.S. Supreme Court took up the appeal of Anthony Elonis' conviction in Elonis v. United States (Docket No. 12-983, Term 2014), under the federal criminal statute 18 U.S.C. Section 875 (related to the use of transmitting by interstate or commerce any communication threatening to kidnap or injure another person), observers and legal analysts surmised it was the court's first significant foray into social media speech and content.

However, the decision, drafted by Chief Justice John G. Roberts Jr. and joined by seven justices (with Justice Samuel A. Alito Jr. writing in concurrence), overturned Elonis' conviction on statutory construction grounds related to requisite mental intent needed to violate the law. The decision, however, keeps open the question as to whether Elonis' statements are protected speech and, if so, whether any standard exists to gauge protected speech against direct or