Update: Supreme Court rules in Facebook, free speech case

In a majority 7-2 opinion written by Chief Justice John Roberts, the Supreme Court said today that a lower court that convicted a man who made threats on Facebook needs to rehear the case after not requiring evidence the threats were made with malice.

On first blush, the decision seems to be a victory for free speech advocates. But the ruling was on statutory (and not First Amendment) grounds and Anthony Elonis may still see his conviction stand if a retrial results in an opinion that Elonis’s Facebook statements were made with a “subjective intent to threaten.”


The case of Elonis vs. United States was heard by the nine Justices on December 1, 2014. Elonis is challenging a 44-month prison sentence he served for posts on Facebook that appeared to threaten his wife with violence, including statements made by Elonis online after he was served with a protection-from-abuse order. Elonis said he “frequently” made the Facebook statements in the form of rap music.

In his decision, Roberts didn’t rule on the the First Amendment aspects of the case. Instead, the Court decided that it wasn’t enough under a federal law to assume that a “reasonable person” would regard the online statements as threatening, but that the law required proof of the defendant’s subjective intent to threaten for conviction.

John Elwood, the attorney for Elonis, had argued that the lower court that a convicted Elonis should have been presented with direct evidence proving that Elonis made the statements with the intention of harming their recipients. Elonis claimed he made the statements as therapeutic works of art, in the form of rap lyrics, and he never intended to harm anyone.

Deputy Solicitor General Michael Dreeben argued that the lower court received the correct evidence and instructions, and that Elonis’ wife was reasonable in her fear of his potential actions.
“Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of ‘awareness of some wrongdoing,'” Roberts said.

Justices Samuel Alito and Clarence Thomas dissented in the case. “The Court’s disposition of this case is certain to cause confusion and serious problems,” said Alito. “Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer.”

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