Supreme Court Reverses Conviction for Threats Made on Facebook, Finding Statute Requires Intent to Intimidate

A threat to cause imminent harm to another person could be subject to criminal prosecution in certain circumstances, despite the First Amendment’s free speech protections. Transmitting a threat across state lines could result in federal charges. The “true threat” exception to free speech has been the subject of much litigation and judicial interpretation. In Elonis v. United States, 575 U.S. ___ (2015), the Supreme Court considered the appeal of a defendant convicted of sending threats through interstate commerce, 18 U.S.C. § 875(c). It rejected the government’s argument that a negligence standard, which considers whether a reasonable person would find the defendant’s statements threatening, should govern the case. Instead, the state must prove that the defendant intended to convey a threat.

In general, the First Amendment does not protect statements and other actions made with “intent to intimidate” that are “likely to inspire fear of bodily harm.” Virginia v. Black, 538 U.S. 343, 364 (2003). The state must prove that the defendant intended to threaten someone and was not merely engaging in “hyperbole.” Watts v. United States, 394 U.S. 705, 708 (1969). Determining whether a statement or action meets the “intent to intimidate” standard requires a careful consideration of the “contextual factors” in each individual case. Black, 538 U.S. at 367.

The charges in Elonis originated from posts written by the defendant on the social media site Facebook. According to the Supreme Court’s opinion, after the defendant’s wife left him in 2010, taking their two children with her, he began “‘listening to more violent music’ and posting self-styled ‘rap’ lyrics inspired by the music.” Elonis, slip op. at 1-2. He periodically stated that the lyrics were “fictitious” and were not intended to portray actual people, but people who saw the posts reportedly became concerned.

The defendant lost his job, allegedly due to a Facebook post, after which he posted a statement that appeared to threaten violence against his workplace. Other posts threatened his wife, such as one that described firing a mortar launcher at her house. The five-count indictment charged the defendant with making threats via interstate communications against his workplace, his wife, police officers, an FBI agent, and an unnamed elementary school.

At trial, the defendant asked the court to instruct the jury that the government has the burden of proving his intent to communicate a “true threat.” Id. at 6. Instead, the court’s jury instructions defined “true threat” as one that a reasonable person would expect the recipient to view “as a serious expression of an intention to inflict bodily injury or take the life of an individual.” Id. at 7. The prosecution stated in its closing argument that the defendant’s intent was irrelevant. The jury convicted him on all counts but one, the threat against his workplace. The Third Circuit affirmed the verdict. 730 F.3d 321 (3rd Cir. 2013).

The question for the Supreme Court was whether § 875(c) required proof of intent or willfulness, meaning that the defendant intended to convey a threat, or whether it imposed a negligence standard, in which the state must prove that a reasonable person would interpret the defendant’s statement or action as a threat. The court held that proof of intent is required and reversed the conviction. It did not directly address any First Amendment issues, nor did it address whether a recklessness standard, between negligence and intent, might apply. Justices Alito and Thomas raised the issue of recklessness in concurring and dissenting opinions, respectively.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Criminal appeals lawyer Michael J. Brown has defended people in west Texas against state and federal criminal charges for more than two decades. Contact us online or at (432) 687-5157 today to schedule a confidential consultation with a member of our team.

More Blog Posts:

Expunction Allows the Removal of Some Criminal Information from the Public Record, With an Important Limitation Because of the Internet, Texas Criminal Lawyer Blog, June 29, 2015

Baltimore Protests Raise Questions About Excessive Bail, Eighth Amendment Protections, Texas Criminal Lawyer Blog, May 4, 2015

Can Text Messages Be Used as Evidence of Guilt In Texas Criminal Cases? Texas Criminal Lawyer Blog, April 27, 2015


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