In Elonis v. United States, the United States Supreme Court reversed the defendant’s conviction under 18 U.S.C. § 875(c) for making potentially threatening Facebook posts, holding that the jury was required to consider the defendant's state of mind in making the post to determine whether a threat had actually been communicated.
Elonis was accused of making several Facebook posts styled as rap lyrics in which he wrote about killing his estranged wife and a kindergarten class. After the FBI was alerted to these posts, an agent visited Elonis. Following the visit, Elonis published a post suggesting that he would have killed the agent and himself if he had been arrested. He was arrested a few weeks later and charged with communicating threats in interstate commerce under 18 U.S.C. § 875(c).
Elonis argued that his Facebook posts were protected by the First Amendment, and thus he could not be convicted under the statute. He also testified that the posts were intended to be fictitious, and that evidence of his state of mind should be considered under the statute. The trial court disagreed and instructed the jury that it could convict him if “an average person, looking at a statement objectively, would believe that it was intended to be a threat.”
The Supreme Court held that the fact that an average person would view the messages as threatening was not enough to support a conviction. Chief Justice Roberts, writing for the majority, stated that a person’s subjective state of mind must be considered. The majority did not specifically establish the mental state necessary to convict under the statute. The very narrow nature of the opinion may indicate that the Justices all agreed that some criminal mental state was necessary to convict, but disagreed as to what the requirement should be. Justice Alito, who joined the opinion, wrote separately to state that it would be enough for a conviction if the defendant had been reckless in making the statements. He also criticized the majority opinion for leaving the law unclear.
The Court also did not address the defendant’s First Amendment arguments. Chief Justice Roberts wrote that, for the time being, the Court only needed to correct the lower courts’ instruction to the jury.
Justice Clarence Thomas, who dissented in the case, wrote that the majority opinion “throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.” Justice Alito joined this criticism, stating that attorneys and judges are “left to guess” as to what the statute requires.
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