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Criminal Law and Procedure

Supreme Court to Hear Whether Man’s Facebook Posts Constituted Threats

 WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court today granted certiorari to a Pennsylvania man who was convicted of making threatening communications via social network postings in violation of 16 U.S. Code Section 875(c), directing the parties to brief on questions of proof and subjective intent required to reach such a conviction (Anthony Douglas Elonis v. United States of America, No. 13-983, U.S. Sup.; See May 2014, Page 10) [ subscribers may access Supreme Court briefs for this case].

Facebook Postings

On Oct. 17, 2010, Anthony Elonis of Topton, Pa., was fired from his position at Dorney Park and Wildwater Kingdom amusement park in Allentown, Pa., after exhibiting “troubling behavior.”  Elonis had previously been disciplined multiple times. On that day, Elonis posted a picture of himself in costume holding a knife to the neck of a female co-worker, who had reported him for sexual harassment.

Ten days later, Dorney Park’s chief of park patrol contacted the FBI to report “disturbing” and “threatening” statements that Elonis had posted on his Facebook page about various ways that he could retaliate against park personnel for his termination. Several more postings were reported to the FBI about a month later.

In his Facebook postings, Elonis made statements about being a “nuclear bomb” and that he had plans to return to the park and had “sinister plans” for his friends there. In subsequent postings, Elonis mused about killing police officers, an FBI agent, children in a nearby, unidentified elementary school and his wife, who had obtained a protection-from-abuse order against him.

Conviction And Appeal

After subpoenaing Facebook and Sprint Nextel to confirm that the postings originated from Elonis’ computer and mobile device, the FBI arrested Elonis on Dec. 8, 2010. A month later, a grand jury in the U.S. District Court for the Eastern District of Pennsylvania returned a five-count indictment against him for making threatening communications in violation of Section 875(c). The counts related respectively to his threats against patrons and employees of Dorney Park, his wife, employees of the Pennsylvania State Police and Berks County Sheriff’s Department, a kindergarten class and an FBI agent. Elonis pleaded not guilty.

After a three-day trial, a jury found Elonis not guilty of making threatening communications to park employees and patrons but found him guilty of the other four counts. In an accompanying order, Judge Lawrence F. Stengel held that reasonable people could see Elonis’ statements as true threats, noting that the people that were the subject of those threats saw them as such. The judge also rejected Elonis’ arguments that Section 875(c) is impermissibly vague and unconstitutional. Elonis was sentenced to 44 months’ imprisonment followed by three years of supervised relief.

The Third Circuit U.S. Court of Appeals affirmed the ruling in September 2013. The appeals court found that Judge Stengel correctly declined to instruct the jury to use a subjective intent standard. The appeals court found that the First Amendment permits criminal punishment for a communication that qualifies as a “true threat.”

Petition For Certiorari

In his Feb. 14 petition for certiorari, Elonis stated that per Section 875(c), “[i]t is a federal crime to ‘[transmit] in interstate or foreign commerce any communication containing . . . any threat to injure the person of another.’”

In light of that statute, Elonis presented the question of whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003) [an enhanced version of this opinion is available to subscribers], “conviction of threatening another person requires proof of the defendant’s subjective intent to threaten . . . or whether it is enough to show that a ‘reasonable person’ would regard the statement as threatening,” as held by the District Court and Third Circuit.

Elonis said that in Black, the Supreme Court defined “true threat” as meaning “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”  Elonis argued that “[t]he lower courts are sharply divided about the implications of” Black, citing case law from the Ninth Circuit U.S. Court of Appeals and several state supreme courts. As such, Elonis contended that “[t]he Third Circuit’s decision should not stand” and that high court review is merited to resolve the matter.

True Threats

In response, the government argued that although there is a circuit split on whether proof of subjective intent to threaten is necessary under Section 875(c), that split is “shallow” and does not require intervention by the high court.

The government stated that Section 875(c) must be “interpreted with the commands of the First Amendment clearly in mind,” per Watts v. United States, 394 U.S. 705, 707 (1969) [enhanced version]. As with any other laws “that target threatening communications,” the government argued that “Section 875(c) reaches only ‘true threat(s),’ rather than ‘political hyperbole’ or ‘vehement,’ ‘caustic,’ or ‘unpleasantly sharp attacks’ that fall short of true threats.”  Citing R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992) [enhanced version], the government said that “true threats are proscribable because they are ‘outside the First Amendment.’”  And, per Black, the government said that this is true even “when the speaker does ‘not actually intend to carry out the threat.’”

Petition Granted

In granting the petition, the high court directed Elonis and the government to file briefs addressing the question presented in Elonis’ petition.

In addition, the high court directed the parties to brief and argue “[w]hether, as a matter of statutory interpretation, conviction of threatening another person under [Section 875(c)] requires proof of the defendant’s subjective intent to threaten.”


Elonis is represented by John P. Elwood of Vinson & Elkins in Washington, Ronald H. Levine and Abraham J. Rein of Post & Schell in Philadelphia and Daniel R. Ortiz of the University of Virginia School of Law Supreme Court Litigation Clinic in Charlottesville, Va.

The government is represented by Solicitor General Donald B. Verrilli Jr., Acting Assistant Attorney General David A. O’Neil and Richard A. Friedman of the U.S. Department of Justice in Washington.

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