What constitutes a Facebook threat? Supreme Court throws out man's conviction.

The Supreme Court reversed the conviction of a man found guilty of posting threatening statements about his estranged wife and an FBI agent. But the court did not set up a clear standard for what constitutes a threat on social media.

Susan Walsh/AP/File
John Elwood, attorney for Anthony Elonis, who claimed he was just kidding when he posted a series of graphically violent rap lyrics on Facebook about killing his estranged wife, shooting up a kindergarten class and attacking an FBI agent, speaks to reporters outside the Supreme Court in Washington in December. The Supreme Court on Monday threw out Elonis's conviction, but dodged free speech issues. Chief Justice John Roberts, writing for seven justices, said it was not enough for prosecutors to show that the comments of Anthony Elonis would make a reasonable person feel threatened. But the court did not specify to lower courts exactly what the standard of proof should be.

The US Supreme Court on Monday reversed the conviction of a Pennsylvania man found guilty of posting threatening statements on his Facebook page about his estranged wife, his former co-workers, and even an investigating FBI agent.

In throwing out Anthony Elonis’s conviction, the high court said a federal jury relied on the wrong legal standard when it concluded that the Facebook posts amounted to “true threats” in violation of federal law.

Despite reaching that conclusion, the seven majority justices declined to identify the correct legal standard to be applied by lower courts in the remanded case – and other cases.

The Elonis case was being closely watched as a potential harbinger of criminal enforcement of offensive speech on Facebook and other social networking platforms on the Internet. More broadly, it offered the Supreme Court an opportunity to better identify when the government can prosecute someone for something they say.

But rather than addressing the broader aspects of free speech protections, the high court issued a narrow ruling invalidating the Elonis conviction but offering little guidance in other cases.

The decision came in the case of Mr. Elonis, who was convicted and sentenced to prison for nearly four years after writing a series of highly offensive Facebook posts, many of them in the form of violent rap lyrics.

Elonis’s estranged wife, his former co-workers, and several law enforcement officers perceived his writings to be genuine threats that he was preparing to take violent action against them and others.

Elonis claimed the violent rap lyrics were a therapeutic way for him to deal with grief and anger after his wife left him and took their children. He also lost his job at a Pennsylvania amusement park.

“There’s one way to love ya but a thousand ways to kill ya,” Elonis wrote of his wife in October 2010. “And I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts…”

Elonis produced more “lyrics” after his wife was awarded custody of the children and a judge issued a protective order. The action prompted a post by Elonis asking whether the judicial decree was “thick enough to stop a bullet.”

At one point, Elonis suggested in “lyrics” that he was considering carrying out “the most heinous school shooting ever imagined.”

After the FBI arrived at his front door to investigate, he produced new lyrics on Facebook stating that he wanted to cut the agent’s throat or detonate a suicide bomb.

Elonis was charged with multiple violations of a federal threat statute. The law makes it a crime to make threatening statements that put others in fear of bodily harm or death. The statute is designed to prevent speakers from intimidating or terrorizing others through spoken or written words.

But the statute does not give federal prosecutors license to ignore protections of the First Amendment and punish all speech that some listeners might consider threatening.

For example, should someone be prosecuted for telling a tasteless joke that some listeners consider threatening?

What about violent rap lyrics that frighten listeners, or exaggerated and offensive Facebook posts that leave readers worried or fearful?

At issue in Elonis v. United States (13-983) was which standard was required for the government to convict someone of making an illegal threat via posts on Facebook.

At his trial, Elonis’s lawyer asked the judge to instruct the jury that to convict, it must conclude that Elonis intended to communicate a threat to his wife and others.

Federal prosecutors argued for an easier standard. They said it was not necessary to prove that a speaker actually intended the words as a threat. All that was necessary was proof that a reasonable person would interpret the words as a threat.  

The judge agreed to give the prosecutors’ instruction. Elonis was convicted.

It is that jury instruction and the resulting conviction that the court invalidated on Monday.

Left unresolved was whether prosecutors in any re-trial may argue to a jury that Elonis’s statements were so reckless that they violated the federal threat statute.

“Elonis’s conviction cannot stand,” Chief Justice John Roberts wrote for the court.

“The jury was instructed that the government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error,” Chief Justice Roberts said.

“Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state,” he said.

Roberts said that there was no dispute that the mental state requirement under the federal threat statute is satisfied if the defendant’s statement is given for the purpose of issuing a threat, or knowing that the statement will be viewed as a threat.

But Roberts said it was less clear whether a finding of recklessness in such a statement would satisfy the statutory requirement. The court said it would leave resolution of that issue to the lower courts.

The majority justices also said that because they were deciding case based on their reading of the statute, it was not necessary to address any related First Amendment issues.

Justice Samuel Alito issued an opinion concurring in part and dissenting in part. He said he agreed with the majority opinion that the jury instructions at the Elonis trial were insufficient, but he disagreed with the court’s refusal to address the recklessness issue.

He said he would hold that a defendant could be convicted if he or she disregarded the risk that a statement would be interpreted as a true threat. 

Justice Clarence Thomas also issued a dissent. He said he would uphold the lower court rulings and the standard favored by prosecutors. 

He said the majority opinion creates an arbitrary distinction between threats and other forms of unprotected speech.

“Had Elonis mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or recklessly disregarded that possibility,” Justice Thomas wrote.

“Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant,” he said. “That need not – and should not – be the case.”

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