Justices Consider If Intent to Harm Matters in Case Involving Graphic Facebook Posts

By Michael Loatman

Dec. 1 — A federal jury should have been instructed to find a man guilty of making criminal threats only if they found he actually intended to threaten his ex-wife and others in a series of violently-worded Facebook posts, his attorney argued Dec. 1 before the U.S. Supreme Court.

The defendant in the case, Anthony D. Elonis, said many of his posts were rap lyrics and a form of therapy, and that he didn't intend his Facebook posts to threaten his wife or others.

His attorney, John P. Elwood, a partner with Vinson & Elkins LLP in Washington, asked the high court to overturn the conviction. Elonis was found guilty of violating 18 U.S.C. § 875(c), which makes unlawful any communication containing “any threat to injure the person of another.”

Elonis's Facebook posts discussed the killing of his wife, making “a name for himself” through “the most heinous school shooting ever imagined” and slitting the throat of an FBI agent. His brief said many posts contained a disclaimer that they were for “entertainment purposes only” and that he wrote to another Facebook user that the posts were therapeutic.

The Pennsylvania jury tasked with evaluating if he violated Section 875(c) wasn't instructed to consider his intention but instead if a reasonable person would consider the statements a serious threat. They found him guilty of four counts under Section 875(c).

The U.S. Court of Appeals for the Third Circuit affirmed the conviction, United States v. Elonis, 730 F.3d 321 (3d Cir. 2013), holding that Elonis was correctly judged based on how a reasonable person would understand his Facebook posts.

The First , Third, Fourth , Sixth , Eighth and Eleventh circuits have all ruled that there is no subjective intent component in the statute, but the Ninth and Tenth circuits and some state supreme courts interpreting analogous state laws have required proving that the defendant had a subjective intent to threaten.

The Supreme Court is reviewing whether Congress intended to require proof of subjective intent or if the First Amendment requires the government to address a speaker's intent to avoid criminalizing protected speech.

Disturbing Facebook Comments

The case centered around Facebook posts Elonis made after his wife and two children moved out of his home and he lost his job. His employer fired Elonis after a supervisor saw a Facebook photo he posted that showed him in costume holding a knife to a co-worker's throat with the caption “I wish.”

Elonis also made a series of comments on Facebook about his wife. When his wife's sister wrote on Facebook that she was going Halloween shopping with his children, Elonis commented that his son should “dress up as Matricide for Halloween,” adding the costume might include his ex-wife's “head on a stick.”

His wife obtained a protection from abuse order against Elonis, and when Federal Bureau of Investigation agents visited his home, he wrote a post about slitting the throat of one of the FBI agents.

Another Facebook post discussed Elonis “checking out and making a name for myself” by initiating “the most heinous school shooting ever imagined.”

The jury convicted Elonis of four counts under Section 875(c) for alleged threats to his ex-wife, local law enforcement, a kindergarten class and an FBI agent.

‘Roadmap' to Threaten a Spouse?

Justice Samuel A. Alito Jr. asked Elwood whether allowing the defendant's intent to be a factor in a Section 875 conviction might create a “roadmap for threatening a spouse and getting away with it.” Alito added that amicus briefs argued that adopting Elonis's position would have “a very grave effect in cases of domestic violence.”

Elwood replied that the government would be permitted to point out inconsistencies in a defendant's claim that he was rapping. He said Elonis had posted a rap before the protective order was issued that didn't involve his wife but instead engaged in “the standard stuff of rap boasting.”

Justice Ruth Bader Ginsburg asked Elwood how the government might prove what was in the defendant's head when making the communications.

Elwood replied that the government could prove “the circumstances, what he said” and “how he saw people reacting to it, his own personal statements at the time.”

Alito also asked if Congress intended for these cases to turn on interpreting a defendant's “really strange psychological state.”

Elwood said that was what Congress intended. He said that when the statute was enacted by Congress, analogous threat laws required “showing that the speaker knew he was putting the listener in fear.”

Relevance of Speaker's Audience

The potentially global audience of online communications came up during argument when Elwood referenced a pending case in Texas involving two teenagers who made statements in a video game chat room. Elwood said one teen called the other crazy, leading the other to reply that he was crazy and “going to shut up a kindergarten and eat one of their still beating hearts.”

Elwood said the teens viewed the language as sarcastic, while a Canadian woman viewed the language as a threat and called authorities.

Citing this example, Chief Justice John G. Roberts Jr. asked the government's attorney, Michael R. Dreeben, of the Department of Justice in Washington, if the relevant context for evaluating the teenager's language was a “reasonable teenager on the Internet.”

Dreeben replied that the government would look at the audience the speaker chose and “whether he would foresee that a person to whom the communication is addressed would interpret it as a true threat.”

Dreeben added that “if we're communicating among friends, particularly in face-to-face context, we can say certain things that will be understood as sarcasm.” However, the situation is different, he said, “when we widen the audience and put a statement out in a situation where reasonable people are going to react to it by saying, this requires attention, this is a threat against an elementary school.”

He asked the justices for a standard that holds people accountable “for the ordinary and natural meaning of the words they say in context.”

Protected by First Amendment?

Justice Sonia M. Sotomayor asked Dreeben whether the First Amendment required an inquiry into the defendant's intent, even if Congress didn't intend to impose such a requirement in Section 875(c). Sotomayor added that the Supreme Court had been “loathe to create more exceptions to the First Amendment.”

Dreeben said the Supreme Court wouldn't be creating another exception to the First Amendment. He added that the court had “calibrated” First Amendment requirements, instead of always using a “broad brush” that found “it necessary to layer on some kind of intent that is not in the statute.”

Justice Elena Kagan said that the government's proposed standard seemed not to be “the kind of standard that we typically use in the First Amendment.” She added that the court typically says “that the First Amendment requires a kind of a buffer zone to ensure that even stuff that is wrongful maybe is permitted because we don't want to chill innocent behavior.”

To contact the reporter on this story: Michael O. Loatman in Washington at mloatman@bna.com

To contact the editor responsible for this story: Barbara Yuill at byuill@bna.com