Supreme Court Heard Facebook Threat Case Last Week

Last week, the Supreme Court heard the case of a man who threatened to kill his wife on Facebook.  U.S. v. Elonis.  After Anthony Elonis lost his wife and job in 2010, he expressed his frustrations on social media.  Specifically, Elonis made repeated threats on Facebook to his ex-wife, law enforcement, and others. 

One of his Facebook posts is as follows:

Did you know that it's illegal for me to say I want to kill my wife?

It's illegal.

It's indirect criminal contempt.

It's one of the only sentences that I'm not allowed to say.

Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife.

He also posted the following : 

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.

After receiving a complaint, the FBI began monitoring his Facebook postings, and Elonis was subsequently arrested and charged with transmitting to interstate commerce communications containing a threat to injure the person of another, a violation of federal law.  He was convicted by a jury and sentenced to 44 months in prison. 

Elonis appealed his conviction.  He argued that the lower courts erroneously applied an objective, rather than subjective, test in determining whether his Facebook postings were protected under the First Amendment.   Under that test, if his statements are considered a "true threat," then the postings are not protected speech under the First Amendment and his conviction would stand.  If they were not a “true threat” (Elonis’ argument), then they are protected speech, and his conviction would be overturned.  

Elonis argues that because he did not subjectively intend his Facebook posts to be threatening, he should not have been convicted.  The trial court and the 3rd Circuit Court of Appeals, however, used an “objective” standard to determine whether his postings to be “true threats,” finding that his Facebook posts were speech that is so clearly objectionable, any objective listener could be scared.  The issue before the U.S. Supreme Court is whether the true threats exception to speech protection under the First Amendment applied in this case, and whether the lower courts applied the proper test.

Post Authored by Julie Tappendorf