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Supreme To Hear 'True Threat' Facebook Rant Case

By Gabriella Khorasanee, JD on June 23, 2014 10:01 AM

Anthony Elonis was unlucky in love and work, so he did what any person would do. He took to Facebook, and threatened everyone from his wife, to FBI agents, to area elementary schools. He did this claiming it was "therapeutic." Mr. Elonis, chocolate, booze and bubble baths are therapeutic -- threatening violence, is not.

The Supreme Court has granted cert in Mr. Elonis' case, to determine whether objective, or subjective, intent is enough to prove a true threat. That is, whether under the First Amendment, Supreme Court precedent, and canons of statutory interpretation, 18 U.S.C. § 875(c), prohibiting threatening communications in interstate commerce, proof of defendant's subjective intent to threaten is required, or merely proof that an objective reasonable person would feel threatened.

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True Threat Jurisprudence

In Virginia v. Black, the Supreme 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' argument for a subjective standard, and instead accepted the interpretations of the Fourth, Sixth and Eighth Circuits. Distinguishing Black, the Third Circuit found that Black 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 (and other state high courts) reading of Black, which would require the speaker to intend to both communicate and threaten.

Supreme Court Grants Cert

With so many courts reading Black differently, and the growing frequency that comments are made online -- and open to varying interpretations, it was clear that the Supreme Court had to step in and lend some clarity. The case is scheduled for the October 2014 term, and we'll have a decision by June 2015. Until then, when you want to rant, stay off of social media.

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