U.S. Supreme Court Clarifies Standard for Online Threats

Cybertraps Logo_B&WJune is typically the month for momentous decisions by the U.S. Supreme Court, and this year’s round of society-shifting decisions is off to a rapid start.

In Elonis v. United States, announced on the morning of June 1, the Supreme Court overturned the conviction of a man who allegedly threatened his ex-wife (and others) in various Facebook posts.

The 20-page decision, written by Chief Justice John Roberts, focuses on a fairly narrow question: whether or not the U.S. District Court gave the correct jury instruction to the jury hearing the charges against Anthony Elonis. By a 7-2 majority, the Court concluded that the District Court gave the wrong instruction and reversed his conviction.

The path to the Supreme Court in this case began in 2010, when Elonis’s wife of 7 years moved out, taking with her their two young children. Elonis, an active Facebook user, began posting “rap” lyrics on the social media site under the name “Tone Dougie.” The increasingly violent imagery contained in the posts raised concerns with his ex-wife, his co-workers, and local law enforcement. Ultimately, Elonis was indicted on five counts of making online threats in violation of 18 U. S. C. §875(c), which prohibits such behavior.

One post helps illustrate the type of language that raised concerns. After reading various posts by Elonis, his ex-wife applied for and received a three-year protection-from-abuse order. Not long afterwards, 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.

That post served as the basis for two of the counts against Elonis, one for allegedly threatening his ex-wife and one for allegedly threatening law enforcement. Ultimately, Elonis was convicted on four of five counts, and sentenced to 44 months in prison (he was released in 2014).

On appeal, Elonis argued that the District Court was wrong to tell the jury that it should convict him if a “reasonable person” would interpret his Facebook posts as a threat. Instead, Elonis said, the standard should be whether he actually intended his comments to be a threat.

The Court agreed. The statute in question, Chief Justice Roberts said, has two components: that a communication was transmitted and that the communication contained a threat. In order to convict someone under §875(c), then, the Government must show both that the defendant knew that he or she was sending a communication and that he or she knew the communication contains a threat.

Since the jury only determined whether a “reasonable person” would view the messages as a threat and not whether Elonis actually intended to communicate a threat, his conviction was invalid and must be overturned.

The Court remanded the case to the Third Circuit Court of Appeals for further proceedings. In theory, the Government could try to prosecute Elonis again under the correct legal standard. That determination will not be made for weeks, if not months.

As always, Slate writer Dahlia Lithwick has a cogent discussion of the decision. I also recommend Angus Johnston’s analysis on his Student Activism blog. I particularly agree with Johnston’s assessment of Justice Alito’s dissent; I agree that in the end, his views on the application of a recklessness standard to online threats and the limited protection of the First Amendment for targeted statements will be compelling.

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