Elonis case decided by U.S. Supreme Court leaves lingering questions for online speech

12 Jun , 2015  | by:

Facebook is the modern-day microphone. The social media platform, in contrast to traditional ways of conveying messages, provides the opportunity for opinions to be amplified immediately to millions of others with the click of a mouse.

But unlike an orator physically standing before you where speech patterns can be scrutinized, emotions can be evaluated, and body language can be deciphered, words from a Facebook user become one-dimensional in transit to readers. Often, those construing messages miles away add their own color and depth to the communication composed behind an emotionless keyboard, creating a discrepancy between the intent of the original speaker and the how the expression is perceived by other parties.

This results in dissonance in the interpretation of messages between the speaker and listener in the digital world not as prevalent through in-person communications. The divergence in the discernment of words created through online speech can add complications to speech laws where intent is a key inquiry and can determine innocence or guilt.

Background of Elonis

The discrepancy of intent created by digital speech took center stage in Elonis v. United States decided by the U.S. Supreme Court on June 1. The case involved the Facebook postings of Anthony Elonis, a Pennsylvania man who went by the pseudonym “Tone Dougie” on the social media outlet. A number of Elonis’ postings on his Facebook page, some styled as rap lyrics, implied he would potentially engage in violent behavior against various parties: former coworkers, his estranged wife, members of the local police department, a kindergarten class, and a FBI agent.

Based on the postings, a grand jury indicted Elonis in early 2011 on five charges under 18 U. S. C. §875(c), a federal interstate threat statute criminalizing “any communication containing any threat . . . to injure the person of another.” The following posts from Elonis’ Facebook page served as the basis of the charges. The exact language of the posts was taken from the Supreme Court opinion that can be read here.

  • Basis for count one of Elonis’ indictment – threatening park patrons and employees: After Elonis was fired from his job at an amusement park, he posted the following on Facebook:

    “Moles! Didn’t I tell y’all I had several? Y’all sayin’ I had access to keys for all the f***in’ gates. That I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I’m still the main attraction. Whoever thought the Halloween Haunt could be so f***in’ scary?”

  • Basis for count two of Elonis’ indictment – threatening his estranged wife: Elonis’ next post was based on a comedy sketch about the illegality of saying you wish to kill the president. In the post, Elonis used his estranged wife instead of the president:

    “Hi, I’m Tone Elonis.
    Did you know that it’s illegal for me to say I want to kill my wife? . . .
    It’s one of the only sentences that I’m not allowed to say. . . .
    Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife. . . .
    Um, but what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. . .
    [remainder of post omitted for brevity]”

    Below the post, Elonis added a link to the original comedy skit and wrote:

    “Art is about pushing limits. I’m willing to go to jail for my Constitutional rights. Are you?”

  • Basis for count three of Elonis’ indictment – threatening law enforcement officers: After the previous post, Elonis’ wife received a protective order against Elonis. In response, Elonis posted the following:

    “Fold up your [protection-from-abuse order] and put it in your pocket
    Is it thick enough to stop a bullet?
    Try to enforce an Order
    that was improperly granted in the first place.
    Me thinks the Judge needs an education on true threat jurisprudence
    And prison time’ll add zeros to my settlement . . .
    And if worse comes to worse
    I’ve got enough explosives
    to take care of the State Police and the Sheriff’s Department.”

  • Basis for count four of Elonis’ indictment – threatening elementary school: Elonis then 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?”

  • Basis for count five of Elonis’ indictment – threatening a FBI agent: After the school shooting post, FBI Agent Denise Stevens visited Elonis at his house. After Stevens left, Elonis posted:

    “You know your s***’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 the b**** ghost
    Pull my knife, flick my wrist, and slit her throat.
    Leave her bleedin’ from her jugular in the arms of her partner. . . . [remainder of posted omitted for brevity].”

Lower Courts

During Elonis’ trial in Pennsylvania Eastern District Court, Elonis testified that his posts were meant to mirror rap lyrics. His attorneys argued the posts were a constitutionally protected form of expression under the First Amendment. On the other hand, the government’s witnesses stated they were fearful of Elonis and interpreted his Facebook posts as serious threats.

The District Court gave the jury the following instructions in deciding whether Elonis’ posts were “true threats” under the federal statute: “A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.”

The jury convicted Elonis on counts two through five of 18 U. S. C. §875(c), finding that a “reasonable person” would have understood Elonis’ words to be threats. Elonis was sentenced to three years, eight months of imprisonment and three years of supervised release.

Elonis appealed the United States Court of Appeals for the Third Circuit, arguing that the jury should have been required to find he intended his posts to be threats. The Third Circuit affirmed the District Court, finding that the intent required by Section 875(c) was merely the intent to communicate words Elonis understood and that a reasonable person would view those words as a threat.

On February 14, 2014, Elonis filed a petition for a writ of certiorari with the United States Supreme Court, seeking review of the Third Circuit’s view of the intent required by Section 875(c). Other appellate courts around the country were divided on the intent component as well. In his petition, Elonis maintained that the criminal threat statute demanded the jury find he subjectively intended to threaten. Therefore, according to Elonis, his convicted should be overturned because the jury instructions in District Court were based on a false interpretation of the statute. The U.S. Supreme Court granted Elonis’ petition on June 16, 2014.

The Elonis case presented two issues to the U.S. Supreme Court: 1. Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten. 2. 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; or whether it is enough to show that a “reasonable person” would regard the statement as threatening.

U.S. Supreme Court

The U.S. Supreme Court decided the Elonis case on June 1, 2015. The Court overturned Elonis’ conviction, holding that the “Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c).” Even though Elonis’ conviction was reversed, he could be tried again under the stricter standard prescribed by the Court.

Chief Justice John Roberts delivered the opinion of the Court. Roberts was joined by Justices Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in part and dissenting in part. Justice Thomas filed a dissenting opinion. 

In Justice Robert’s majority opinion, he wrote that the text of Section 875(c) did not identify a particular mental state requirement, but “mere omission from a criminal enactment of any mention of criminal intent” does not mean the statue should be read as having no intent requirement. Morissette v. United States, 342 U. S. 246, 250 (1952). Roberts emphasized that the “central thought” is that a defendant must be “blameworthy in mind” in order to be found guilty.

Roberts explained that Section 875(c) required proof a communication was transmitted and that the communication contained a threat. There is a “presumption in favor of a scienter requirement” for each of these elements, Roberts opined. In Elonis’ case, Roberts said “the crucial element separating legal innocence from wrongful conduct” is the threatening nature of his communication. Accordingly, the Court found the statute required a consideration of the mental state of the speaker. Roberts concluded:

“In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”

The Court declined to address whether recklessness would be sufficient. Even though recklessness was addressed during oral argument, neither party briefed the issue. The Court also did not evaluate the First Amendment issues because the case could be adjudicated through a statutory interpretation analysis, according to Roberts. Justice Alito wrote in his separate opinion he believed the Court should have used the recklessness standard. In his dissent, Justice Thomas expressed that Elonis’ conviction should have stood.


The Court narrowly decided Elonis by finding that the negligence standard used in the lower courts was not sufficient, but it is still uncertain under Section 875(c) if the prosecution has to prove a defendant wanted to threaten (intent) or if the prosecution would only need to prove the defendant was aware that another would feel threatened but made the statement anyway (recklessness).

The Court also left unanswered First Amendment questions regarding true threats. “True threats” are not protected under the First Amendment, but the exact definition of a “true threat” is not clearly defined. For example, is the speaker’s state of mind a required element of a “true threat” under the U.S. Constitution? Some federal appellate courts say yes. Other federal appellate courts say no because they believe it only matters whether a reasonable person listening to the words would feel threatened.

Besides not elaborating on the constitutional implications of the case, the Court glossed over the technology and Internet aspects of Elonis. Contrary to Riley v. California in which the Court examined the advancement of technology in order to decide whether cell phone data should be subject to the warrant requirement, the Court in Elonis did not dive into a conversation about progressing technology because Elonis could be resolved without considering the modern online avenue in which the speech was delivered.

Although Elonis was the first time in which the Court dealt with speech on social media, it will certainly not be the last. In a world where the Internet is often the primary means by which people communicate messages, the dissonance that occurs when speech is transmitted across the web will continue to raise questions of whether certain online speech should be considered a true threat.

The law treats online communications largely the same as traditional communications, but it is more difficult to determine intent through digital communications. In contrast to in-person speech where intent can be gleaned or inferred by body language or other indications from the speaker, the dividing line between an expression and a true threat is a more fine one on the Internet.

Because intent becomes blurred when speech is disseminated across online networks, digital speech dissonance will continue to be an issue in assessing true threats and other unprotected forms of speech online.

Elonis was likely the tip of the iceberg of Internet-related cases that will come before the U.S. Supreme Court in future years. As online speech surges and becomes more sophisticated, the Court will eventually be faced with more questions regarding the intricacies of the digital world—and unlike in Elonis, next time the Court may not be able to dodge the digital dilemma.

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