Anthony Elonis was unlucky in love and work, so he did what any person would do. He took to Facebook, and threatened everyone from his wife, to FBI agents, to area elementary schools. He did this claiming it was “therapeutic.” Mr. Elonis, chocolate, booze and bubble baths are therapeutic – threatening violence, is not.

The Supreme Court has granted cert in Mr. Elonis’ case, to determine whether objective, or subjective, intent is enough to prove a true threat. That is, whether under the First Amendment, Supreme Court precedent, and canons of statutory interpretation, 18 U.S.C. § 875(c), prohibiting threatening communications in interstate commerce, proof of defendant’s subjective intent to threaten is required, or merely proof that an objective reasonable person would feel threatened.

True Threat Jurisprudence

In Virginia v. Black, the Supreme Court reviewed a statute that prohibited the burning of crosses intended to intimidate and defined cross-burning as prima facie evidence of intention to intimidate. The Supreme Court held that cross-burning could be prohibited, but the language of the statute failed on due process grounds because the prima facie evidence clause denied a defendants’ “right to not put on a defense.”

Circuit Split

The Third Circuit declined to accept Elonis’ argument for a subjective standard, and instead accepted the interpretations of the Fourth, Sixth and Eighth Circuits. Distinguishing Black, the Third Circuit found that Black turned on the prima facie evidence exception, which was not present here.

Supreme Court Grants Cert

With so many courts reading Black differently, and the growing frequency that comments are made online – and open to varying interpretations, it was clear that the Supreme Court had to step in and lend some clarity. The case is scheduled for the October 2014 term, and we’ll have a decision by June 2015. Until then, when you want to rant, stay off of social media.

Related Resources:

  • ‘I Heart Boobies’ Campaign Protected Student Speech, Says 3rd Cir (FindLaw’s U.S. Third Circuit Blog)
  • Fathers’ Claims Against Israeli Officials Fail in US Court (FindLaw’s U.S. Third Circuit Blog)
  • Religion in Schools – Permissible Prohibition or Free Speech Violation? (FindLaw’s U.S. Third Circuit Blog)

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