Oral argument for Elonis v. United States to be held Monday, December 1
The U. S. Supreme Court will hear oral argument Monday in the appeal of a Pennsylvania man who claims that his conviction for posting threats on Facebook is unconstitutional.
The question before the court is whether the posting of threats to specific people over a widely viewed website is considered protected expression under the First Amendment unless the prosecutor proves that the accused had specific intent to threaten the targeted individuals.
The California-based Criminal Justice Legal Foundation has filed argument in Elonis v. United States to encourage a decision which says "no." A general intent to publish statements any reasonable person would regard as a threat is sufficient to place the statement outside the protection of the First Amendment.
"Social media provides a worldwide platform for those who send messages to intimidate, bully or threaten. The notion that advertising a specific threat of violence against a specific victim that would frighten any reasonable person can be excused as 'just kidding,' is certainly not required by the First Amendment," said Foundation Legal Director Kent Scheidegger.
The case involves the 2011 conviction of Anthony Elonis for violating a federal law which makes it a crime to transmit threatening communications across state lines. According to court records, in Fall 2010, Elonis was working as an administrator at Dorney Park & Wildwater Kingdom in Allentown, PA. A few months earlier, his wife Tara left him, taking their two young children. After that, he began having problems at work. One of the employees Elonis supervised filed five sexual harassment reports against him. On one occasion, while she was working in the office alone, Elonis walked in and began undressing in front of her. She immediately left and reported the incident. Elonis was later fired after posting a picture on Facebook of himself holding a knife to her throat with the caption, "I wish."
A short time later, Elonis began posting threats against Tara. In one post, he wrote, "I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." After Tara received a court protection order against Elonis, he posted more statements threatening to kill her and statements that he was going to "initiate the most heinous school shooting ever," in order to make a name for himself.
After these threats, FBI Agent Denise Stevens began to monitor his posts. After documenting his threats to the water park employees, his wife, and a kindergarten class, Stevens and another agent visited Elonis at home, but he refused an interview. Later that day he posted, "Little agent lady stood so close. Took all the strength I had not to turn the b**ch ghost. Pull my knife, flick my wrist, and slit her throat."
In December 2010, Elonis was arrested and charged with five counts of transmitting threats. At trial, he argued that his postings were a form of therapy to help him deal with his emotional pain, and they were protected by the First Amendment. A jury felt otherwise, convicting him of threatening his wife and Agent Stevens. The court sentenced Elonis to 40 months in prison and 3 years of supervised release.
On appeal, Elonis continued to argue that his postings were protected speech and also cited a federal Ninth Circuit Court of Appeals ruling which held that specific intent to threaten was required for a conviction under federal law. After the U. S. Court of Appeals rejected his arguments on appeal, Elonis petitioned the Supreme Court to hear his claims. When the high court agreed to review his case this Fall, the Foundation decided to submit argument. Joining the case with argument supporting Elonis are People for the Ethical Treat of Animals (PETA), Reporters Committee for Freedom of the Press, and the Rutherford Institute.
In a scholarly amicus curiae (friend of the court), brief the Foundation argues that there is no First Amendment protection for transmitting threats to injure or kill if a reasonable person would conclude that the threats are real. In addition, while the Ninth Circuit has ruled that specific intent is required, every other federal appeals court which has considered the issue has found that it is not required. A decision accepting the CJLF argument will protect enforcement of this important federal law and aid state efforts to enact similar laws to protect people from threats.
CJLF Legal Director Kent Scheidegger is available for comment at (916) 446-0345. The Foundation brief in this case is available at: