Yesterday, the SCT had the opportunity to provide some guidance on what constitutes a threat on Facebook. However, rather than address that sticky question it punted and decided Elonis v. U.S. in favor of the defendant on narrow statutory grounds.
In Elonis, the defendant, Anthony Elonis, was charged in a five count indictment with transmitting or relaying information in interstate commerce containing threats which violated the Interstate Communications Act (ICA). The threats were directed at both the general public, law enforcement, co-workers, friends, and Elonis’ soon to be ex-wife. Here is sample of what he wrote:
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 every imagined
And hell hath no fury like a crazy man in a Kindergarten class
The only question is…which one?
You know your shit’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent lady stood so close
Took all the strength I had not to turn that bitch ghost
Pull my knife, flick my wrist, and slit her throat
Fold up your PFA [Protection from Abuse Order] and put it in your pocket[.]
Is it thick enough to stop a bullet? [this last threat was directed to Elonis’ wife]
Upon conviction, Elonis argued that the trial court applied the wrong test to determine what constitutes a true threat. Elonis claimed that the prosecution had to prove that he had a subjective intent to carry out his threats. This subjective intent standard is the law in a few jurisdictions. In contrast, the government argued that the lower court was correct and that it only has to show that a reasonable person would regard Elonis’ Facebook posts as threatening. This reasonable person standard is followed by most jurisdictions.
The U.S. Supreme Court overturned the lower court’s ruling; however, it side-stepped the key First Amendment question and did not directly accept either argument put forward by the parties. Instead, the Court based its decision on statutory grounds. The court determined that that ICA “requires that a communication was transmitted,” “that it contained a threat,” and that the accused knew that. The High Court went on to say that
[h]aving liability turn on whether a “reasonable person” regards the communication as a threat–regardless of what the defendant thinks–”reduces culpability on the all-important element of crime to negligence.
For more commentary and background on the case go here.