Ride the Lightning

Supreme Court Throws Out Conviction for Violent Facebook Postings

June 10, 2015

Last week, in Elonis v. United States, the Supreme Court made it harder for prosecutors to convict those who make violent statements on Facebook and other social media, saying it is not enough that an ordinary person would find the rants threatening.

It is a fact-specific decision which may be more confusing than enlightening as the dissent noted. As a Washington Post story describes, Anthony Douglas Elonis made social media posts, delivered in rap-lyric style, suggesting killing his estranged wife, federal law enforcement officials and even a kindergarten class. Chief Justice John G. Roberts Jr., noting that Anthony Douglas Elonis had said he intended his postings to be fictitious and even therapeutic, said a defendant’s state of mind had to be considered.

In other words, prosecutors must prove that threats on Facebook were in fact intended as threats. This may be a high bar.

The narrow opinion said it was not necessary to address whether the First Amendment’s guarantee of free speech protected Elonis’ Facebook statements. The opinion also declined to take a position on whether it would be enough for a conviction to show that a defendant had been reckless in making inflammatory statements, as Justice Alito proposed.

For the Justices, it was sufficient for now, Roberts wrote, to correct a misinterpretation by most lower courts that the poster’s intent is immaterial and what matters only is how the message is received.

In a digital world, I fear that this decision will result in genuine threats going unpunished, generally with women as victims, many already victims of domestic violence.

Writing about his estranged wife, Tara, Elonis had posted: “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

At oral argument six months ago, justices seemed to agree there was a need for more than the “reasonable person” standard — which says that a reasonable person would consider a particular statement to be a threat — but there was no consensus on exactly what that standard should be.

Roberts said there is “no dispute” that the state-of-mind requirement is satisfied “if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.”

But Alito, who agreed the case should be sent back to lower courts, said the decision left too many unanswered questions. “The court refuses to explain what type of intent was necessary,” Alito complained. “Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? . . . Attorneys and judges are left to guess.”

The case involved Elonis' Facebook feed during a two-month period in 2010. His wife had left with their two children, and Elonis, then 27 and working at an Allentown amusement park, grew increasingly despondent and angry. He was fired and responded with a post about being a nuclear bomb about to explode. He pondered about making a name for himself by shooting up an elementary school.

That post resulted in a visit from an FBI agent, and Elonis later posted a fantasy about slitting the agent’s throat and turning her into a “ghost.”

Elonis was convicted after a judge told jurors that the government needed to prove only that Elonis made the statements and that a reasonable person would foresee that the words would be interpreted as “a serious expression of an intention to inflict bodily injury or take the life of an individual.”

Elonis served three years of a 44-month sentence before being released from prison. The Philadelphia-based U.S. Court of Appeals for the 3rd Circuit upheld the conviction, saying Elonis’ subjective intent in writing his postings did not matter.

I'm not sure the Supreme Court got this one right. Saying that threats are merely fiction and "therapeutic" is all too easy a "get-out-of-jail-free" card.

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