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Case Summary:
Elonis v. United States (2015)

True Threats

Photo of Anthony Douglas Elonis

Rap lyrics often contain violent imagery, but when Anthony Elonis posted some on Facebook describing wanting his wife’s “head on a stick,” “making a name for [himself]” by shooting up a kindergarten class, and fantasizing about killing an FBI agent, they became a cause for concern. He was arrested and convicted under 18 U. S. C. §875(c), a federal law prohibiting threats in interstate commerce. Elonis challenged the conviction on the grounds that the jury was instructed that “a reasonable person” would interpret his words to be a threat, not whether they were a true threat. Indeed, he had included disclaimers on his posts indicating that the lyrics were “fictitious” and “therapeutic.” Many thought this case would resolve a highly anticipated issue in First Amendment law. That issue is whether courts should use the same test for speech online as they do for “real world” speech to determine if a speaker has crossed the line from merely provocative, and so protected, speech, to punishable inciting or personally threatening, and so unprotected, speech. But the Court avoided that issue by deciding the case on statutory grounds instead.

The Supreme Court agreed with Elonis in an 8-1 opinion written by Chief Justice John Roberts. He wrote that the standard used by the lower court – the “reasonable person” standard – is intended for civil liability, not criminal cases where it “is inconsistent with ‘the conventional requirement for criminal conduct—awareness of some wrongdoing.’” Awareness of wrongdoing – in this case, intent to threaten – must still be one of the required elements of a criminal conviction, even though this statute did not explicitly state as much. As a result, Elonis’ conviction was overturned. Ultimately, however, the Court of Appeals “conclude[d] beyond a reasonable doubt that Elonis would have been convicted if the jury had been properly instructed,” and so his conviction was reinstated.

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