Facebook Poster’s Conviction For Threats, Rants Reinstated

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By Lance J. Rogers

Oct. 28 — The U.S. Court of Appeals for the Third Circuit Oct. 28 reinstated the conviction of a man who posted violent Facebook rants about murdering his wife, massacring kindergartners and slitting the throat of an FBI agent ( United States v. Elonis , 3d Cir., No. 12-3798, 10/28/16 ).

The trial court’s failure to tell the jury that prosecutors were required to prove that Anthony Elonis was aware that his virulent rants would cause fear and trepidation was harmless in view of the strong evidence that Elonis knew the terrifying effect his words were having on his targets.

“The record contains overwhelming evidence demonstrating beyond a reasonable doubt that Elonis knew the threatening nature of his communications, and therefore would have been convicted absent the error,” the court said in an opinion by Judge Anthony J. Scirica.

Proof of Subjective Intent

The U.S. Supreme Court last year threw out Elonis’s conviction for violating the federal threat law, 18 U.S.C. § 875(c), ruling that the jury should’ve been instructed that it could only vote for conviction if there was proof that Elonis was aware that his wife and others would feel threatened by his online musings, which often took the form of rap-style lyrics ( 97 CrL 228, 6/3/15).

The decision resolved a circuit split on the issue.

Various civil liberties groups filed amicus briefs in the case, anticipating that the justices might tackle the broader question of how to balance free speech rights in the digital age and what qualified as a so-called “true threat.” But the justices ducked the First Amendment question and decided the case on the narrow issue of whether proof of subjective intent is required as a matter of statutory interpretation.

They also left open the question of whether Elonis’s conviction could be sustained on proof that he acted “recklessly.”

The Third Circuit didn’t answer the recklessness question either, saying the harmless error disposition made that ruling unnecessary.

‘True Threat.’

Elonis testified at his trial that he was going through a difficult divorce, that his posts were therapeutic, that he was just exercising his First Amendment right to vent and that he never meant to be taken seriously.

But his wife said she felt threatened when Elonis wrote: “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

He often framed his comments in rap verse, which he argued is a protected form of speech that uses provocative exaggeration and hyperbole: “If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.”

Elonis also mused whether the protective order his wife obtained was “thick enough to stop a bullet?”

The jury found him guilty after it was instructed that a statement qualifies as a “true threat” outside the protection of the First Amendment if the speaker makes the statement in a context in which a reasonable person would foresee that a third party would view it as an expression of intention to cause serious harm

Chief Judge Theodore A. McKee and Judge Thomas M. Hardiman joined the opinion.

The U.S. Attorney’s Office, Philadelphia, represented the government. Post & Schell, Philadelphia, represented Elonis.

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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