On June 1, 2015 the U.S. Supreme Court in Elonis v. U.S., overturned the conviction of a man who had made violent threats on Facebook against his estranged wife. The court ruled that it was not enough — as prosecutors had argued — to convict someone on the basis that the language used could be regarded as a threat by a reasonable person. The justices said there had to be proof that the writer actually intended the words to be a threat to warrant criminal charges. Chief Justice John G. Roberts Jr., noting that Anthony Douglas Elonis had said he intended his postings to be fictitious and even therapeutic, said a defendant’s state of mind had to be considered. The narrow opinion said it was not necessary to address whether the First Amendment’s guarantee of free speech protected Elonis’s Facebook statements. The opinion also declined to take a position on whether it would be enough for a conviction to show that a defendant had been reckless in making inflammatory statements, as Alito proposed. It was sufficient for now, Roberts wrote, to correct a misinterpretation by most lower courts that the poster’s intent is immaterial and what matters only is how the message is received.
Wisconsin law on cyberstalking seems to pass the non-First Amendment test set forth in Elonis v. U.S. Wisconsin statute § 947.0125, Unlawful use of computerized communication systems, makes it a criminal offense to message another person by electronic mail or other computerized communication system with intent to frighten, intimidate, threaten, abuse or harass another person. This seems to specifically require consideration of the sender’s state of mind and not simply the sender’s words alone. Note, however, “computerized communication system” is a legislative term of art and must have the same meaning in all 3 instances where the legislature has used it, ss. 48.825 and 948.075 and this section. A cell phone or other device, itself, can never constitute a computerized communication system. State v. McKellips, 2015 WI App 31, ___ Wis. 2d ___. But see, Wis. Stat. Ann. § 947.012, unlawful use of telephone