Supreme Court Reverses Conviction for Facebook Threats

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jun 11, 2015

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Bully Key on KeyboardThe US Supreme Court ruled that evidence that a man had used violent and graphic language on Facebook was not enough to support his conviction for making threats in violation of federal law.

As reported by NPR, Anthony Elonis of Pennsylvania was arrested by the FBI, which had been monitoring his Facebook posts.

Elonis started posting violent messages on Facebook after his wife of seven years left him. These messages led his estranged wife to seek a protective order against him. The messages also got him fired from his job at an amusement park.

Rap Lyrics

Elonis posted his messages in the form of rap-style lyrics, many of them directed against his wife, including “There’s one way to love ya, but a thousand ways to kill ya.”

One such lyric quoted by the Supreme Court went:

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.

Elonis was charged with making threats against his wife, law enforcement officials, and a kindergarten class. He was convicted on five counts of interstate communication of illegal threats and sentenced to more than three years in prison.

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“Reasonable Person”?

At his trial, the jury was directed to view Elonis’s messages from the point of view of a “reasonable person” against whom the messages were directed.

Elonis argued that consideration of his statements should be based on his own state of mind and on whether he actually meant to issue a “true threat.” He said that his posts were a form of therapy for him and a way for him to blow off steam.

Supreme Court Chief Justice Roberts wrote in his opinion that

At trial, Elonis testified that his posts emulated the rap lyrics of the well-known performer Eminem, some of which involve fantasies about killing his ex-wife. 

Getting Away with Threats?

Justice Samuel Alito had questioned this “rap defense” during oral arguments in the case, saying that Elonis’s argument

sounds like a roadmap for threatening a spouse and getting away with it. So you put it in rhyme and you put some stuff about the Internet on it and you say, ‘I’m an aspiring rap artist’ And so then you are free from prosecution.

Justice Clarence Thomas dissented from the majority’s decision, and Justice Alito concurred in part and dissented in part.

Justice Alito wrote in his dissent:

[T]he Court refuses to explain what type of intent was necessary. 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? The Court declines to say. Attorneys and judges are left to guess.

Commentators in Time Magazine suggested that the high court’s decision could make online abuse easier to defend in court:

The court’s narrow decision provides little guidance to courts struggling with the issues raised by threatening speech—online or offline—and raises troubling issues for victims of threats, especially in the context of domestic violence.

If you’ve been a victim of online threats…

If you’ve been the victim of online threats, and you believe you may be the target of potential physical violence, you may wish to contact law enforcement officials in your area or seek a restraining order.

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