U.S. Supreme Court Tosses Conviction in Facebook Threats Case

By Mark Walsh — June 01, 2015 3 min read
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Ruling on narrow grounds in a case that was being watched in education circles, the U.S. Supreme Court on Monday threw out the federal conviction of a Pennsylvania man who had made threats on Facebook that included rap-lyric-style musings about shooting up an elementary school.

The justices ruled 8-1 to toss the conviction of Anthony Elonis, but the majority stopped short of making any broad First Amendment rulings about threats on the Internet.

Elonis’s threats against his estranged wife and a female FBI agent, as well as the unspecified elementary school, prompted debate among the justices during oral arguments in December about when school administrators might need to respond to such violent content.

The legal question in Elonis v. United States (Case No. 13-983), though, was more technical: whether true threats should be weighed under the objective standard of how a reasonable person would interpret the threatening language, as Elonis called for, or a subjective standard of how a recipient would perceive the message, as a federal appeals court ruled in his case.

“Elonis’s conviction ... was premised solely on how his posts would be understood by a reasonable person,” Chief Justice John G. Roberts Jr. wrote in a majority opinion that was signed by six other justices. “Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with the conventional requirement for criminal conduct—awareness of some wrongdoing.”

Roberts said relying on a “reasonable person” standard “reduces culpability on the all-important element of the crime to negligence, and we have long been reluctant to infer that a negligence standard was intended in criminal statutes.”

His opinion was joined by Justices Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

Justice Samuel A. Alito Jr., while technically agreeing that Elonis’s conviction should be thrown out, issued an opinion that read like a dissent. He said the majority failed to provide enough guidance to lower courts in threats cases, and that a recklessness standard would suffice to convict Elonis, meaning “when a person disregards a risk of harm of which he is aware.”

Justice Clarence Thomas filed a dissent, saying he would have upheld the subjective-intent standard used in Elonis’s case by the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.

The majority’s failure to clarify a standard “throws everyone from appellate judges to everyday Facebook users into a state of uncertainty,” Thomas said.

“There is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat,” Thomas said. “For instance, a high school student who sends a letter to his principal stating that he will massacre his classmates with a machine gun, even if he intended the letter as a joke, cannot fairly be described as engaging in innocent conduct.”

Elonis was a 27-year-old amusement park employee in 2010 who was undergoing difficulties with his wife and his job when he began posting violent material on Facebook, including this statement: “Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined.”

Elonis testified in court that the posting was a reference to the song “I’m Back” by the rap artist Eminem, in which the artist had criticized his ex-wife and fantasized about participating in the 1999 shootings at Columbine High School in Colorado.

One of Elonis’s convictions under a federal threats statute at issue in the Supreme Court case was for making threats against schoolchildren. Under Monday’s ruling, that conviction and three others are set aside, though Elonis could be prosecuted again.

A version of this news article first appeared in The School Law Blog.