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SCOTUS Reverses 'Facebook Threats' Conviction

By Mark Wilson, Esq. on June 01, 2015 | Last updated on March 21, 2019

Anthony Douglas Elonis made statements on Facebook threatening his ex-wife, a local school, the local sheriffs, and the FBI agents who came to question him about all these threats.

Maybe that's how it happened. Or maybe Elonis was merely practicing his "rap lyrics" and exercising his constitutional rights in the process. Whatever he was doing, the Supreme Court vacated Elonis' conviction for making criminal threats -- but didn't do much beyond that.

Negligence Isn't Enough. The End.

The set-up for this case in the media made the issue about rap lyrics. For others of us, the issue was whether a threat must be objectively received as a threat, subjectively intended as a threat, or both. The Third Circuit upheld Elonis' conviction on the former ground: It was enough that a reasonable person would take his statements as a threat, notwithstanding his intent.

Chief Justice Roberts, writing for the seven-justice majority, said this was a mistake. A threat has two parts: The transmission and the reception. A "negligence" standard would address just the reception, but not the transmission. Without involving the First Amendment or the "true threat" doctrine, the Court vacated Elonis' sentence and remanded to the Third Circuit.

A Little Help?

And what would happen there? That's the question Justice Alito, concurring and dissenting in part, had. In his view, the Court said only what the test wasn't, but didn't provide guidance as to what the test should be. Alito was miffed: "While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. ... We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded -- not clarified -- the confusion."

Alito also criticized the majority for not addressing the question of whether recklessness was sufficient scienter to convict Elonis. Even though neither party briefed the issue, they did raise it at oral arguments. This alone should be enough for the Court to consider the question, he said.

Unprotected Speech

Justice Thomas dissented separately, but largely echoed Alito's criticism: "This failure to decide [the mens rea for criminal threats] throws everyone from appellate judges to everyday Facebook users into a state of uncertainty."

Thomas would have applied the common law rule of general intent to conclude that the government need only prove Elonis knew the statement contained a threat. This is basically a subjective standard -- the opposite of what the Third Circuit used, and one that could create even more First Amendment problems, as Justice Goodwin Liu observed in the opinion from People v. Chandler, a California Supreme Court decision on attempted criminal threats.

Both Alito and Thomas easily found that Elonis' statements were "true threats" not protected by the First Amendment. The statements, Alito noted, were directed at specific individuals, containing specific threatening statements, and Elonis made sure his targets saw those statements. "To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar," Alito said.

As we've noted before, Elonis was hardly about rap lyrics or a First Amendment danger. Roberts helpfully quotes Elonis' statements in their entirety to give us some context, and under any standard, his statements fell outside the bounds of the First Amendment.

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