Elonis: Confusing Both the Educated Judge and the Everyday Facebook User

By Garrett Rider; Staff Member (Vol. 15)

Over the past decade, racial tension has continued to intensify in response to serious issues involving the mistreatment of African Americans at the hands of our police force. The media has seemingly been overwhelmed with stories similar to the incidents involving Michael Brown, Alton Sterling, and Philando Castile, where unarmed black males were killed by police officers. This heightened tension has mobilized communities, but has also in some instances led to more violence—including mass shootings of police officers in cities such as Dallas and Baton Rouge. The actions in response to these incidents have raised serious First Amendment issues, particularly regarding pro-violent rhetoric that is posted on social media.

Elonis’ Acts and Conviction

In Elonis v. United States, the United States Supreme Court had to deal with the same dynamic between First Amendment protections and pro-violent expressions of speech on social media. Anthony Elonis, under the alias “Tone Dougie,” posted numerous violent statements in the form of comments or rap lyrics or rap lyrics on his Facebook page. Some of these statements suggested killing his ex-wife, blowing up the state police department, shooting up a kindergarten class, and blowing up a bridge. Despite Elonis’ contention that he was simply expressing himself to ease the pain of his ex-wife leaving him, he was still arrested and charged with violating 18 U.S.C. § 875(c), which made it a “crime to transmit in interstate commerce ‘any communication containing any threat . . . to injure the person of another.’” Although Elonis asserted that he did not intend for his Facebook posts to be actual threats, he was convicted by the District Court and the Third Circuit Court of Appeals upheld the conviction, holding that only a reasonable person needs to be able to view his posts as threats.

Applicability to Current Societal Issues

Take a second and imagine that you were a police officer in Dallas the day that a sniper attack left five officers dead. From that perspective, it would be reasonable to think that any Facebook post suggesting that police officers be targeted should be perceived as a real threat, and the person who created the post should be convicted, given the current situation that our society is facing.

However, it is equally important to consider the other perspective that is growing more prevalent in our country, that unarmed African Americans are scared of being killed at the hands of the police. In today’s society, one of the best ways to raise awareness of social injustice is to exercise one’s First Amendment right to freedom of speech and speak out through social media. While Facebook posts such as “Let’s start killing police” to “see how dey like it” may come across as extreme to some, they are far more reasonable and may not actually be considered threats when considered from the perspective of citizens that have experienced some of the brutal injustice that has occurred. Further, from the eyes of those same citizens, the First Amendment should protect their right to speak out against injustice, not work to hinder it.

Holding in Elonis

These kinds of conflicts are what the Supreme Court in Elonis hoped to address with its holding. In reversing Elonis’ conviction, the Court held that a conviction under the federal statute requires that the individual making the threat actually intends to threaten the targeted individual(s) or that the defendant knows that his or her statements will be perceived as threats by the targeted individual(s). Essentially, the reasonable person standard that the lower courts used was abolished, and the Court attempted to decide the issue on criminal law intent principles, without addressing how the First Amendment came into play at all.

State of Confusion

At first it seems as though the Supreme Court’s holding may have adequately addressed the relevant issues concerning advocates of free speech against the competing concerns of those that want to protect themselves from potential violence. To be sure, the Court hoped that people would now think the First Amendment protected individuals that make statements on social media without the intent to actually threaten other individuals.

However, the majority in Elonis managed to say absolutely nothing about the applicability of the First Amendment. If someone were to go on Facebook right now in a fit of rage and post that police officers should be killed, would the First Amendment protect them? What if the result actually occurred (police officers in the individual’s area are actually killed)? Would it matter? It would be nice to know the answers to those questions.

It would not have been difficult for the Court to discuss how the First Amendment pertained to the issues in this case, whether it meant upholding or reversing Elonis’ conviction. As Justice Thomas suggested, a simple look at history on how the courts have dealt with threats may have allowed the Court to view Elonis’ posts as true threats, which have long been unprotected by the First Amendment. Conversely, the Court could have held that the First Amendment itself requires a particular mental state for threat convictions. Whatever the Court may have decided, it would have been unquestionably better for it to address the First Amendment issues rather than brushing off the First Amendment and leaving both “judges and everyday Facebook users” in a state of confusion as to how it applies to threats on social media.

Rather than resolving issues of clarity pertaining to when First Amendment protections will be given to individuals’ perceived threatening statements on social media, the Supreme Court in Elonis might have blurred the issues even further.