True Threats: Venting or Violent?
The Case:
In 2010, Anthony Elonis’ wife left him and his employer fired him. In response, Anthony Elonis
began posting violent rap-style lyrics on Facebook about them. For example, Elonis wrote of
his estranged wife: “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.”
Elonis’ wife feared for her safety. When a state court issued her a Protection from Abuse
order, Elonis asked on his Facebook wall if the order was “thick enough to stop a bullet.” He
also included a link to the “Freedom of Speech” entry on Wikipedia.
Elonis’ violent messages continued, including posts about shooting up an elementary school
and wanting to kill an FBI agent who visited him.
On Dec. 8, 2010, Elonis was arrested and charged with transmitting communications
containing a threat to injure another person. (“True threats” are not protected by the First
Amendment.) Elonis argued that his rap lyrics were therapeutic, written to express his anger
and depression, and included disclaimers of being fictitious. He also maintained that the posts
did not indicate intent to carry out the threats; therefore, they should be covered by freedom
of speech.
Think about this:
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What are some arguments for this speech being protected by the First Amendment?
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What are some arguments against it?
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If you were the judge, how would you rule on this case?
True Threats: Venting or Violent?
Questions to Consider:
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What makes a “threat” worthy of prosecuting?
Elonis posted his statements on Facebook. What if he had used a different medium?
How should the government determine which online threats — if any — need to be taken
seriously and punished?
The rap artist Eminem discusses committing violence against his ex-wife in his rap lyrics,
yet he has not been prosecuted. How are his songs similar or different from Elonis’ posts?
Should a different standard be applied? Why or why not?
In some recent school shootings, the perpetrator has made similar posts to that of Elonis
on social media in advance. When should such speech be acted upon? How do you balance
free speech with public safety?
Does it make a difference that Elonis did not directly send most of these threats to his exwife (e.g. he did not tag her in most posts and they were no longer friends on Facebook)?
Why or why not?
Should Elonis’ intentions matter if his words put his ex-wife in fear for her life? Why or why
not?
Does it matter if a person being threatened on social media is less familiar with the norms
of social media? Why or why not?
Supreme Court Justice Ruth Bader Ginsburg noted during oral arguments, “How does one
prove what's in somebody else's mind?” What did she mean?
What happened with the case?
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In October 2011, Elonis was convicted in district court and sentenced to 44 months in
prison. He appeals.
The Third Circuit Court of Appeals upheld the conviction in September 2013 based on the
standard that a “reasonable person” would have understood the communications to be a
threat. Elonis appeals.
The Supreme Court overturned the conviction on June 1, 2015, and sent the case back to
lower courts. It ruled that Elonis could not be convicted based solely on whether a
reasonable person would regard his language as a threat. There must be proof of intent
and that the defendant was aware of his wrongdoing. Because this was absent, the justices
didn't find it necessary to address any First Amendment issues.
In more detail:
Anthony Elonis was originally convicted in District Court and sentenced to 44 months in prison.
Elonis and his lawyers argued that the posts were rap lyrics inspired by artists like Eminem.
They said his statements were a therapeutic process rather than real threats, and therefore
protected by the First Amendment. The use of emoticons and links to the Wikipedia entry on
“Freedom of Speech” also indicated they weren’t meant to be taken seriously, according to
the defense. Prosecutors maintained that the threatening Facebook posts were not covered
by freedom of speech, but fell under the true threat exception, which applies to “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 appealed the decision to the Philadelphia-based U.S. Court of Appeals for the Third
District. The court upheld the conviction, applying a “reasonable person” standard rather than
considering whether Elonis subjectively intended to carry out the threats. Elonis argued that
the Supreme Court’s decision in Virginia v. Black (a 2003 case about cross burning) indicated
that a true threat must include “subjective intent” — although the statute being challenged
specifically mentioned a subjective intent standard, unlike the statute Elonis was charged
under. The Third Circuit deemed that his statements would be interpreted as a real threat by
a reasonable person, and therefore weren’t protected.
In 2013 the Supreme Court agreed to review the case, to decide whether “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 other federal courts of appeals and state courts of last resort.”
Social media became an issue in the case. Elonis’ petition argued that “modern media allow
personal reflections intended for a small audience (or no audience) to be viewed widely by
people who are unfamiliar with the context in which the statements were made and thus who
may interpret the statements much differently than the speakers intended.” Therefore, his
lawyers argued that a subjective standard was more appropriate in deciding the case, given
the impersonal nature of communication over the Internet.
The Supreme Court heard arguments on Dec. 1, 2014. On June 1, 2015, seven justices agreed
that Elonis could not be convicted based solely on whether a reasonable person would regard
his statements as a threat. The justices said there must be proof that the defendant was aware
the posts were threatening. The justices sent the case back to lower courts. The justices did
not address First Amendment issues because of the limited ruling.
Elonis served three years of a 44-month sentence before being released from prison. The
Associated Press reported that Elonis was arrested again in April 2015 for allegedly throwing a
pot that hit his girlfriend's mother in the head. Police charged him with simple assault and
harassment.
Teachers:
Here are some possible answers to the “Think about this” questions.
What are some arguments for his speech being protected by the First Amendment?
 He wasn’t friends on Facebook with his ex-wife, so she would have had to go
looking for his posts to see them; they were not directly sent to her.
 Lots of rappers talk about committing violence in their lyrics without getting
prosecuted; he was just expressing himself in that style, inspired by rappers like
Eminem.
 He included emoticons to show he was jesting and cited “Freedom of Speech”
in some of his posts.
What are some arguments against it?
 A reasonable person would interpret his posts as threats; the language is
understandably intimidating toward his wife.
 If he had committed a school shooting after his threats and nobody had done
anything about it, there would have been recriminations.