Newark, NJ- In an 7-1 decision, handed down on down on June 1st, the U.S. Supreme Court made it more difficult for prosecutors to convict people for making threats on Facebook and other social media platforms by reversing federal convictions of a Pennsylvania man accused of threatening his estranged wife.
In Elonis vs. the U.S., the U.S. Supreme Court reversed the federal conviction of Anthony Elonis, who was accused of making threats to his wife, coworkers and a kindergarten class. He was charged and convicted of five counts of communicating physical threats of violence through interstate commerce.
In 2010, Anthony Elonis became estranged from his wife. As a means to deal with the breakup of his marriage, he began listening to rap music and writing rap lyrics of his own, according to the court’s opinion. He eventually changed the name of his Facebook profile to “Tone Dougie,” creating an on-line persona separate from his real life persona. He used that profile to regularly post his rap lyrics which often contained threats of violence directed towards his estranged wife and other parties.
Along with the violent lyrics, which Chief Justice John Roberts described as “crude, degrading and violent,” Elonis also repeatedly posted disclaimers. Those disclaimers served to inform readers that he was exercising his right to free speech and reminded readers the lyrics were fictitious. The court’s opinion noted that Elonis said writing the lyrics helped him “deal with the pain.”
Elonis’ ex-wife and coworkers didn’t feel as though the threats were an artistic expression, they felt as though the lyrics were legitimate threats. He was fired from his job which lead to more lyrics that would later become the center of his criminal case.
After a string of posts threatening his wife, boss, coworkers and even threatening to shoot up a kindergarten class, Elonis’ wife contacted the FBI.
He was then arrested, charged and subsequently convicted of five counts of making threats, a conviction he appealed. Although part of the Elonis’ argument centered on his rights to free speech, the Supreme Court avoided delving into that matter, instead focusing on when a threat is a prosecutable offense.
On appeal, Elonis argued the prosecution did not prove there was criminal intent behind the threatening lyrics. At his trial, the jury was instructed that Elonis could be convicted of the charges if a “reasonable person” would consider the communications threatening, but Elonis’ defense attorney argued that the court must prove “he intended to communicate a true threat,” and that he intended to follow through on his threats, not only that he “intentionally made the communication.”
The U.S. Supreme Court reversed Elonis’s conviction, sending the matter back to a lower court. In the opinion, Chief Justice Roberts said that a criminal conviction requires the prosecution to do more than prove that a reasonable person would consider something a threat- they must prove the person intends to act on what they say thereby making a “true threat.” He said that a person must understand they are doing something wrong.
Although the court established that “true threats,” are not protected by the First Amendment, the court’s opinion was not clear about what a true threat is, a point Justice Samuel Alito made in his dissent, saying, “Attorneys and judges are left to guess.”
This case is important because harassment and threats are very often charged on similar facts. This case should be illustrative to State Courts considering similar issues. It also shows something that is often overlooked, like jury instructions can have a bearing on the outcome a person’s criminal case. It also highlights the importance of having a criminal defense attorney near the court to work on your case. Procedures such as paperwork filing, motions, jury instructions, etc. are all very important and can lead to the success of a case, or a person’s conviction.
As a devoted criminal defense attorney, serving Newark, Jersey City, Elizabeth and Hackensack and other areas throughout New Jersey, I can provide my clients with a strong criminal defense, so they have a better chance of avoiding conviction and/or minimizing the consequences of a conviction.