In Elonis v. United States the defendant was convicted of violating the Interstate Communications Act and sentenced to more than three years in prison. His conviction stemmed from a series of ominous Facebook posts in which he threatened his wife, a former employer, and the community as a whole. Some of the individuals threatened by the defendant were friends with him on Facebook.
Here is a sample of what he posted:
That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten-mile radius
to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a Kindergarten class
The only question is…which one?
Fold up your PFA [Protection from Abuser oder] and put it in your pocket
Is it thick enough to stop a bullet?
The defendant argues that these posts were rap lyrics and that he had no intent on carrying out what he wrote on Facebook. The defendant also claims that the posts were protected by the 1st Amendment and that in order to be convicted the government had to prove that he had a subjective intent to threaten.
This subjective intent standard is the law in a few jurisdictions (Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont). In contrast, the government argues that the lower courts were correct when they upheld the defendant’s conviction because the prosecution only needed to prove that a “reasonable person” would regard the defendant’s Facebook posts as threatening. It will now be up to the SCT to determine the applicable standard to apply to online criminal threats.
The specific issue in this case is whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort?
Brief for Petitioner, Anthony D. Elonis
Brief for the Marion B. Brechner First Amendment Project and Rap Music Scholars (Professors Erik Nielson And Charis E. Kubrin) in Support of Petitioner