By Miko Zeldes-Roth and Albert Fox Cahn, Esq.
Online harassment is a serious concern for Muslim Americans, with social media threats on the rise. Regrettably, it can be difficult to prosecute such threats and harassment without raising significant First Amendment concerns. Currently, there are several New York State laws that can punish online harassment, but courts and lawmakers must continue to balance public safety against First Amendment free expressions rights.
The First Amendment generally protects speech, including social media content and other novel forms of communication, but these protections are not without their limits. Generally, online communication will only be illegal if a specific threat is made. These threats can be posted on a public Facebook post, in a private message, or using any other form of communication. To amount to a "true threat," the message must be so explicit that it can only be interpreted as a threat towards the recipient or their property. If the statement is ambiguous, or if there is any other reasonable interpretation of the content, it will likely not be prosecutable as a “true threat.”
“True threats” are one important exception to the First Amendment’s protection of speech, but it’s not the only one. Non-threatening online communication can be criminal if it alarms the recipient and has no legitimate purpose. For instance, if you have been the target of repeated, unwanted, and disturbing messages (such as Facebook messages), then such activity may qualify as online harassment (even if there is no direct threat made against you).
These carve-outs may seem simple, but applying them is rarely straightforward. In recent years, we’ve seen courts repeatedly struggle to draw the line between legitimate speech and threats of violence, including the U.S. Supreme Court’s 2015 decision in Elonis v. United States. In Elonis, the Court found that social media content only constitutes a threat if it is actually intended to be threatening. The mere fact that the recipient of such communications found it to be threatening is not enough, since some recipients may be hypersensitive in how they interpret the statements that are directed at them. Prosecutors must not only prove that the recipient felt threatened, they must also prove the perpetrator intended the communication to have that impact.
True threats and repeatedly harassment are generally a crime, but in certain cases such conduct is punished much more severely. Online harassment premised on a target's protected characteristic (e.g. race, religion, national origin, etc.) may also face heightened punishment under New York State law as a hate crime. These laws can provide additional protections to all minority groups, including Muslim Americans. Residents of New York City are also protected under the City's Human Rights Law. This law protects against identity-based discrimination and harassment. Hate crime survivors can pursue and an administrative claim before the NYC Human Rights Commission or sue in New York State Supreme Court.
Even as the definition of online harassment continues to develop, certain forms of malicious online activity remain clear-cut criminal offenses. If you or a loved one has been the recipient of intimidating or alarming messages that you view as threatening, you should contact 911 or reach out to CAIR-NY at 646-666-7599.
 People v. Orr, 2015 NY Slip Op 50568(U), 47 Misc. 3d 1213(A), 15 N.Y.S.3d 713 (Crim Ct.
Apr. 22, 2015); see also Virginia v. Black, 538 U.S. 343, 359 (2003).
 People v Grammatico, 2017 N.Y. Misc. LEXIS 1, 2017 NY Slip Op 50000(U), 54 Misc. 3d 1203(A)
(N.Y. J. Ct. 2017).
 Harassment in the Second Degree (N.Y. Penal Law § 240.26)
  Chicago-Kent College of Law at Illinois Tech, "Elonis v. United States," Oyez, https://www.oyez.org/cases/2014/13-983 (accessed June 6, 2017).
 N.Y. Penal Law § 485.10
 “Enforcement.” New York City Commission on Human Rights, accessed June 12, 2017. https://www1.nyc.gov/site/cchr/enforcement/enforcement.page
Disclaimer: The foregoing is provided solely for educational purposes; it is not intended to provide legal advice. If you have any questions about social media harassments or any other legal matter, please contact a licensed attorney.