Supreme Court Tosses Out Conviction For “Threats” Made On Facebook

The Supreme Court has narrowed the means by which Federal prosecutors can prosecute someone for making statements online that could be perceived as threats.


The Supreme Court has tossed out the conviction of a Pennsylvania man who was prosecuted for making what the government contended with threats on Facebook against his estranged wife and other persons:

WASHINGTON — The Supreme Court on Monday made it harder to prosecute people for threats made on Facebook and other social media, reversing the conviction of a Pennsylvania man who directed brutally violent language against his estranged wife.

Chief Justice John G. Roberts Jr., writing for the majority, said that prosecutors must do more than prove that reasonable people would view statements as threats. The defendant’s state of mind matters, the chief justice wrote, though he declined to say just where the legal line is drawn.

Chief Justice Roberts wrote for seven justices. Justice Samuel A. Alito Jr. voted with the majority, though he said that a defendant’s recklessness should suffice. The majority opinion took no position on that possibility.

“Attorneys and judges are left to guess,” Justice Alito wrote.

Justice Clarence Thomas issued a similar criticism in his dissent.\

“Our job is to decide questions, not create them,” he wrote. “Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today’s decision rests.”

The case concerned threatening rap lyrics that arose from domestic troubles. Anthony Elonis, a Pennsylvania man who had adopted the rap persona Tone Dougie, posted long tirades in the form of rap lyrics on Facebook.

Mr. Elonis wrote that he would like to see a Halloween costume that included his wife’s “head on a stick.” He talked about “making a name for myself” with a school shooting, saying, “Hell hath no fury like a crazy man in a kindergarten class.” He fantasized about killing an F.B.I. agent.

Some of the posts contained disclaimers or indications that they aspired to be art or therapy. At Mr. Elonis’s trial, his estranged wife testified that she understood the posts as threats.

“I felt like I was being stalked,” she said. “I felt extremely afraid for mine and my children’s and my family’s lives.”

Mr. Elonis was convicted under a federal law that makes it a crime to communicate “any threat to injure the person of another.” He was sentenced to 44 months.

The Supreme Court has said that “true threats” are not protected by the First Amendment, but it has not been especially clear about what counts as such a threat.

The question for the justices in the case, Elonis v. United States, No. 13-983, was whether prosecutors had done enough to prove Mr. Elonis’s intent. Prosecutors had argued that the words and their context were enough, saying that people should be held accountable “for the ordinary and natural meaning of the words that they say in context.”

Mr. Elonis’s lawyers said more was required. Ideally, they said, prosecutors should have to prove that the speaker’s purpose was to threaten someone. Failing that, they said, prosecutors should at least have to prove that the speaker, whatever his or her purpose, knew that it was virtually certain that someone would feel threatened.\

This case represented one of the first cases in which the Justices were being asked to determine the applicability to statements made on social media that someone might have interpreted as a threat.Because of that, it was being closely watched by people in law enforcement, civil libertarians, and those concerned with the extent to which traditional First Amendment principles will be applicable to an entirely new medium. I made note of many of these concerns when the Justices first accepted this case for review last year, and then again before oral argument was held in the case last December. As I noted at the time, the fact that the Roberts Court has developed a reputation for finding First Amendment protection even in cases involving offensive speech suggested that the Federal Government would have a tough time convincing the Justices to adopt their rather lax standard for determining when a communication constitutes a threat. At oral argument itself, it became clear that the Justices were not convinced of the prosecutor’s argument, but that they weren’t certain what kind of standard they could establish that could be easily applied in future cases. While today’s decision doesn’t directly deal with the First Amendment issues that were raised in the case, the ruling made clear that prosecutors in this and future cases will have to do something more than just point to the words that a Defendant used when prosecuting cases like this. They will need to establish that the Defendant was intending to threaten someone when he used the words in question, or that the Defendant knew there was a reasonably possibility that they would be perceived that way.

Orin Kerr at The Volokh Conspiracy shares his thoughts:

1) This is a strong opinion by Chief Justice Roberts. It sticks with the established basics of interpreting federal criminal statutes, relying heavily on the classic Morissette case and its progeny. Pretty classic federal statutory interpretation. And I think it applies those principles persuasively.

2) The narrowness of the opinion was a wise move, I think. Trying to answer which mental state below knowledge would suffice might end up a lot harder than it looks. The big problem is that federal criminal law lacks a coherent framework of mental states below intent and knowledge. Federal criminal law mental states are a mess. They’re mostly a mishmosh of confusing common law mental states with some occasional Model Penal Code (MPC) tossed in for flavor. As most law students learn, the MPC includes exceedingly specific definitions of when a mental state is “reckless” or “negligent” in an MPC jurisdiction. But there’s a major conceptual problem with trying to impute the MPC’s mental states here: The federal interstate threat statute predates the MPC by a few decades. For the Court to readily read into the 1930s-era threat statute a very technical definition first proposed by a law reform group in the late 1950s would require some fancy footwork. Would you impute the entire technical definition jot for jot? Or just parts of it, as I believe Justice Alito ends up doing in his opinion? Hard questions. Probably better not to try, at least absent more substantial briefing on the question. So on the whole I think the Court was probably wise to stick to the narrow ground.

On the whole it seems to me that the Court got the decision right here. Online threats and cyberstalking are, of course, serious issues that ought to be prosecuted when the evidence is there to support the charges. At the same time, though, if someone posts something online that another person deems to be threatening, there should be more to what the government has to prove in a criminal case than whether or not the alleged target felt threatened. If it can’t be established beyond a reasonable doubt that the Defendant either intended his language to be a threat or that he reasonably should have known that it would be perceived in that way, then the Defendant should not be convicted. Exactly what constitutes evidence of the Defendant’s knowledge in a case like this is going to vary from case to case, and establishing a standard will likely take future cases and future appeals, possibly all the way back to the Supreme Court itself. As a preliminary matter, though, the Court has taken the right step here in putting the burden on prosecutors to establish that something that they contend is a threat not subject to First Amendment protection actually is, in reality, a threat.

Here’s the opinion:

Elonis v. United States by Doug Mataconis

FILED UNDER: Crime, Law and the Courts, Science & Technology, , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. OzarkHillbilly says:

    This is mush, pure mush, and mighty sour mush at that. And they know it. If I published rap lyrics on Facebook threatening SC Justices with any number of dastardly deeds, how long would it be before US Marshals were knocking at my door?

    “Our job is to decide questions, not create them,” he wrote. “Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today’s decision rests.”

    Never thought I would agree with Thomas, but here, I do.

  2. Gustopher says:

    I don’t see how a “reasonable person” standard wouldn’t have been appropriate. And, luckily, a trial by jury would have 12 reasonable persons to make that decision.

  3. James Pearce says:

    “The case concerned threatening rap lyrics that arose from domestic troubles. Anthony Elonis, a Pennsylvania man who had adopted the rap persona Tone Dougie, posted long tirades in the form of rap lyrics on Facebook.”

    What a joke. No allowances for artistic expression? Only Batman villains couch their threats in rhymed couplets.

  4. DrDaveT says:

    I can’t help but suspect that the members of the court who perceived no explicit threat don’t really believe, deep down, that anyone ever reads Facebook pages.

  5. SKI says:

    Doug, and Orin, are correct, this is the right decision.

    To OzarkHillbilly and the other commentators, the opinion doesn’t make those lyrics not a threat. It means that the government, prosecuting you, needs to establish that you posted them with either (a) the intent that they be a threat or (b) the knowledge that the recipients would take them as threatening. SCOTUS wasn’t opining on the facts but the law.

    In the instant case, the Government argued for and got jury instructions that told the jury that intent didn’t matter, only whether a “reasonable person” would have thought they were threatening. That removal of intent is simply wrong.

    That being said, it is very likely that that same jury skill convicts using the correct “intent” standard.