U.S. Supreme Court sneak peek: True threats on Facebook – Elonis v. U.S.

The United States Supreme Court will hear arguments in Elonis v. U.S. on Dec. 1, 2014, tackling the issue of what constitutes a true threat on the Internet. In what will be the Supreme Court’s first case regarding true threats since the 2003 case of Virginia v. Black, the Court will be tasked with answering a divided question among courts regarding true threat prosecutions – whether the First Amendment requires proof of the defendant’s subjective intent to threaten or merely that a “reasonable person” would regard the statement as threatening.

A jury in the Eastern District Court of Pennsylvania convicted Anthony Elonis of four counts of threatening to injure his estranged wife, an elementary school, and law enforcement officials by posting to his Facebook page. The Third Circuit Court of Appeals affirmed. The charges stemmed from violations of 18 U.S.C. 875(c):

“Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”

Elonis, an aspiring raper, posted under the pseudonym “Tone Dougie” on Facebook. His posts included the following, among many others:

  • “Did you know that it’s illegal for me to say I want to kill my wife?”
  • “I’ve got enough explosives to take care of the state police and the sheriff’s department.”
  • “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.”

I suggest reading the petitioner’s brief in full to get the context of these and other Facebook posts from Elonis. I also should point out that Elonis was not Facebook friends with his estranged wife nor did he tag his wife or any law enforcement official in any of the posts.

Petitioners claim the posts were not meant to be taken seriously and that Elonis was inspired by artists like rapper Eninem and the comedy troupe “The Whitest Kids U’ Know.”

The petitioner relies on the following arguments, among others, in his brief:

  1. The Text Of Section 875(c) Requires Proof of Subjective Intent To Threaten.
  2. Without A Subjective Intent Mens Rea, Section 875(c) Criminalizes Negligent Speech And Violates The First Amendment.

The United States has until Sept. 29, 2014 to file its respondent’s brief. Stay tuned to MLonML for continuous updates on the Elonis case.