FAN 61.1 (First Amendment News) Court Decides Facebook “Threats” Case on Statutory Grounds

Anthony Elonis

Anthony Elonis

The Court just handed down in decision in Elonis v. United States, which had been argued on December 1, 2014. The Court ruled in favor of the Petitioner Elonis. The opinion is here.

The Vote: 8-1

Author of Majority opinion: Chief Justice Roberts

The Holding: The Court holds 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 the federal law at issue in this case.” [Amy Howe, SCOTUSblog]

“The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.” [From majority opinion]

Case decided on statutory grounds; First Amendment question not reached.

Dissenting Opinions: Justice Thomas dissents, and Justice Alito concurs in part and dissents in part.

Justice Alito: “The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the 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 reckless- ness suffice? The Court declines to say. Attorneys and judges are left to guess.”

Justice Thomas: “Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were “true threats” unprotected by the First Amendment, I would affirm the judgment below.”

The Facts: Anthony Elonis was convicted of making threats against his estranged wife, and later against an FBI agent. In response to his wife leaving him and taking their two children, Elonis posted several things referring to her on his Facebook page. On it he wrote: “Revenge is a dish that is best served cold with a delicious side of psychological torture.” Consistent with that statement, he also wrote: “There’s one way to love ya, but a thousand ways to kill ya,/ And I’m not going to rest until your body is a mess,/ Soaked in blood and dying from all the little cuts./ Hurry up and die bitch.” (See here for additional statements.)

A jury found Elonis guilty and he was sentenced to 44 months in prison. In an opinion authored by Judge AnthonyScirica , the Third Circuit upheld his conviction.

The Issues: The two issues before the Supreme Court were:

  1. Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and
  2. 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.

The Lawyers

 John P. Elwood argued the case on behalf of the Petitioner Anthony Elonis.

 Michael R. Dreeben, Deputy Solicitor General, Department of Justice, argued on behalf of the government.

Amici Briefs

Fourteen amicus briefs were filed in the case.

 Amicus briefs in support of the Petitioner were filed by: the  American Civil Liberties Union, the Abrams Institute for Freedom of Expression, the Cato Institute, the Center for Democracy & Technology, and the National Coalition Against Censorship Reporters Committee for Freedom of the Press and Nine Media Organizations, the Thomas Jefferson Center for the Protection of Free Expression, and the Rutherford Institute, among others.

Amicus briefs in support of the Respondent were filed by the Anti-defamation League, Wisconsin and Seventeen Other States, the District Of Columbia, Guam, and the National District Attorneys Association, and the National Center for Victims of Crime, among others.

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