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3rd Cir. Re-Examines 1st Amendment True Threat Exception

By Gabriella Khorasanee, JD | Last updated on

People get carried away on Facebook. But when is a rant no longer a rant?

The Third Circuit re-examined its First Amendment jurisprudence to redefine the boundaries of true threats and came to a reasonable conclusion: Objective intent is enough (pun intended).

Facebook Threats

Anthony Elonis was estranged from his wife, and as a result of his depression and inappropriate behavior was fired from his job. What followed was a campaign of Facebook rants that included references including, but not limited to, his estranged wife's "head on a stick," an elementary school shooting, detonating explosives, and killing his wife, cops, kids, co-workers, along with FBI agents. Violent enough for you? (For your daily dose of the disturbing and crazy, read the full opinion).

Elonis didn't think so, but a jury did; he was convicted on four of the five counts brought against him for violations of 18 U.S.C. § 875(c), which prohibits the use of interstate communications of threats to harm individuals. His prior attempt to dismiss the indictment failed, as well as several post-conviction motions.

On appeal, Elonis' main argument was whether the true threats exception to First Amendment speech protection requires an objective or subjective intent to threat.

True Threat Jurisprudence

In 1991, the Third Circuit in United States v. Korma held that an objective standard applied to determine whether a statement was a true threat -- that is, "a statement is a true threat when a reasonable speaker would foresee the statement would be interpreted as a threat." Elonis argued that the Supreme Court's subsequent decision in Virginia v. Black required a subjective intent to threaten.

In Virginia v. Black, the Court reviewed a statute that prohibited the burning of crosses intended to intimidate and defined cross-burning as prima facie evidence of intention to intimidate. The Supreme Court held that cross-burning could be prohibited, but the language of the statute failed on due process grounds because the prima facie evidence clause denied a defendants' "right to not put on a defense."

Circuit Split

The Third Circuit declined to accept Elonis' interpretation, in accord with the Fourth, Sixth and Eighth Circuits. The Third Circuit found that the Black case turned on the prima facie evidence exception, which was not present here. Instead, here, the court found that the context of the statements was taken into account, and the Government still had to "prove that a reasonable person would foresee Elonis's statements would be understood as threats." The Third Circuit declined to accept the Ninth Circuit's reading of Black, which would require the speaker to intend to both communicate and threaten.

The Supreme Court has not taken on many true threat cases, but seeing that the circuits have been in disagreement for several years, and that there is only one circuit with a differing interpretation, it may take more division among the circuits for the High Court to clarify the true threat exception.

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