Today at SCOTUS: When Do Facebook Rants Qualify As 'True Threats' of Violence?


In October and November 2010, Anthony Elonis, like many other Americans, repeatedly used the social networking site Facebook as a platform for sharing his thoughts. Unlike most other Facebook users, however, Elonis ran afoul of federal law by posting graphic and violent revenge fantasies that centered on him murdering his estranged wife, murdering his employer and co-workers (those posts got him fired), and eventually killing the F.B.I. agent sent to investigate him. "You know your shit's ridiculous when you have the FBI knockin' at yo' door," he wrote in one November 2010 post. "Little Agent Lady stood so close/Took all the strength I had not to turn the bitch ghost/Pull my knife, flick my wrist, and slit her throat."

As a result of that Facebook post and several others like it—including one where he said that he wouldn't rest until his wife was "soaked in blood and dying from all the little cuts"—Elonis was convicted on four counts of transmitting "in interstate or foreign commerce any communications containing any threat to kidnap any person or any threat to injure the person of another." A jury sentenced him to 44 months in prison and his conviction was later upheld by the U.S. Court of Appeals for the 3rd Circuit. Today, the U.S. Supreme Court will hear Elonis' appeal.

At issue in Elonis v. United States is whether those Facebook posts constitute a "true threat" of violence, or whether they qualify instead as a form of constitutionally protected speech under the First Amendment.

Courtesy of Sire Records

"I'm just an aspiring rapper," Elonis declared several times on Facebook, likening his bloody odes to the work of bestselling rapper Eminem, whose hit song "97 Bonnie and Clyde" also featured the murder of an estranged wife. In fact, in his main brief to the Supreme Court, Elonis and his lawyers characterize his Facebook writings as part of a long, colorful tradition in American music, one where artists as different as Bob Dylan, Guns N' Roses, Lightnin' Hopkins, and Body Count all detail "first-person revenge fantasies" via song. "However hateful or offensive," the Elonis brief argues, "those songs are entitled to full First Amendment protection. The same protections extend to the efforts of amateurs writing on comparable themes, moved by similar experiences."

The federal government, however, is not buying it. Elonis' assertion "that his own speech was indistinguishable from the speech of the various commercial artists he claims to have imitated wholly disregards the very different contexts in which his own statements were made," the government argues in its reply brief. For one thing, the government points out, after Elonis' wife sought and received a restraining order against him in response to one set of graphic Facebook posts, he promptly returned to the social networking site to ask whether her restraining order is "thick enough to stop a bullet?"

As the federal government sees it, Elonis was well aware that his posts "communicated a serious expression of an intent to do harm." And besides, "even if [Elonis] subjectively intended his posts to carry a different meaning," a reasonable observer would nonetheless interpret them as "true threats" of violence (as Elonis' wife did interpret them). "The First Amendment does not require that a person be permitted to inflict those harms based on an unreasonable subjective belief that his words do not mean what they say," the federal government told the Court.

Did Anthony Elonis intend to communicate multiple serious threats of illegal violence via Facebook? Or was he simply employing the forceful language of gangster rap in order to express himself in what he considered to be an artistic manner? The outcome of the case will likely hinge on the Supreme Court's answers to those questions.

Related from Reason TV: "Killer or Artist? Why Rap Is on Trial"

NEXT: Steve Chapman: On the Menu, Government Meddling

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  1. Which is a sadder and more pathetic self discription by a young man: "I'm an aspiring rapper" or "I'm a music producer"?

    1. Community organizer.

  2. Maybe his writings suggest a restraining order, but 44 months in jail?

    1. Yeah, my thoughts too. She's welcome to the restraining order but until he actually does something to violate her rights like trespassing or physically attacking her I think the law needs to back off.

      1. Can't disagree more with you more. The 1st amendment does not guarantee freedom to make threats of violence.

        Remember the old probation about shouting fire in a crowed theater?

        Are you that dense ? Really?

        1. Remember the old probation about shouting fire in a crowed theater?

          Dicta in a dissenting opinion, not precedent.

        2. FALSELY shouting fire. And it was directed toward approval of jailing draft protesters.

          Not exactly a well-chosen example.

        3. Remember when 'shouting fire in a theatre' was debunked as being no longer relevant like 1000 times before on these threads?

        4. You mean the 'shouting fire in crowded theatre' position that was used to justify imprisoning people who spoke up against American involvement in the First World War and the draft?

        5. Please look up the Schenck case before you ever use that argument again.

          Things like this remind me of why I feel for public school conspiracy theorists.

  3. I friended a man in Reno, just to watch him die.

    1. Ice T had a catchy little number that garnered a lot of attention back in the early 90s. I do recall that it was eventually pulled from the album due to public criticism. However no one went to jail over it.

      1. The courts tend to give more leeway to so called "artistic expression" than violent rants against individuals.

        I started visiting this site because I had an interest in libertarian positions.

        What I am finding is very discouraging. I see a real lack of "reason" when an issue runs counter to some of your precious beliefs.

        1. "What I am finding is very discouraging. I see a real lack of "reason" when an issue runs counter to some of your precious beliefs."

          What I hear there is, you mean it's using "reason" to abandon principles when it's convenient, and when doing so means standing up for an unsavory person.

          Do I need to reiterate that the guy didn't actually do anything except make Facebook posts?

          1. Not quite true. He made violent threats against a woman. Maybe that doesn't mean anything to you, but most of the civilized world considers that criminal behavior.

            So one of your principals is it's OK to make threats of violence against woman? How ignorant.

            Thank you for proving my point.

            1. What does gender have to do with anything?

              1. What am I doing? This is Tulpa. Never mind, I didn't say a word to you.

              2. Nothing much. Other than it is an example of what happens quite frequently. Or didn't you realize that?

                1. If it had no meaning, was it included just for distraction or camouflage?

  4. As the federal government sees it, Elonis was well aware that his posts "communicated a serious expression of an intent to do harm."

    As Elonis sees it, the federal government was well aware that his posts had not "communicated a serious expression of an intent to do harm."

    So, he said, they said.

    1. A reasonable person would disagree with some moron that makes violent threats.

      Where is that vaunted "Reason" you people are so found of? I see very little of it being applied.

      1. He did not violate her rights. Due to her subjective "feelings" of being threatened, she got a restraining order. That, I think, it's an approprirate legal punishment.

        You don't have to agree with someone, or like what they do, in order to believe they shouldn't be locked up in jail for it.

        People like you - I don't think you actually know or realize what jail is like. Ranting "rapping" Facebook posts should not land someone in jail.

        1. So how many women have died at the hands of a violent person that had a restraining order against them?

          You sound like you do know what jail is like. That probably explains your position.... which is pretty weak.

          1. John,

            It is a horrible thing that people die violently every day(sometimes preceded by threats and probably more often not). It is however true.

            People make ill considered violent threats thousands of times more frequently than they act them out. They also write REALLY bad poetry and "songs" based on violent fantasies. Some of them get paid lots of money for doing so.

            You can't make the assumption that because SOME people are victims of violence (sometimes preceded by threats and probably more often not) that therefore it justifies suspending someone else's first amendment rights.

          2. And how many women out of those with restraining orders has absolutely nothing happen to them? Ittakes next to nothing to get a restraining border against a man.

            This isn't 'Minority Report' where you get arrested fans tried for something you might do.

      2. New here, huh? OK, here's a primer on free speech, because when issues like this get to the Supreme Court, it's not about deciding whether the particular law applies to this particular case, but whether the law is a good idea in the first place.

        People who frequent this site are typically worried about giving prosecutors the power to interpret and prosecute people over mere words that do not cause immediate harm. Why? Well because putting this guy in jail for wanting to be the next Eminem isn't that far away from, for example, using alleged Silk Road proprietor Ross Ulbricht's libertarian fascination as a not-so-sneaky sneaky way to prejudice a jury against him. "Under this man's belief system, you wouldn't get a Social Security check, old man Juror #8!"

        Again, this man can be publicly and privately sanctioned in many ways that make his screeds more expensive without taking away his freedom to live among us, however odd he might be.

        1. I'm really not that new here.

          But a previous point I made explained that 'Artistic Expression" allows statements that are not allowed when it is a specific violent threat against a specific person.

          I am not a lawyer but I have friends that are, and we have had this conversation before.

          By the way, I don't need a primer on free speech from people that condone violent threats.

          1. "By the way, I don't need a primer on free speech from people that condone violent threats."

            Yes, you certainly do, but it won't do any good.
            I think Huffpo is off to the left; they're all 'I support free speech, but...'
            You'll fit right in!

          2. Obviously, you DO need a primer on free speech.

            Clearly you do not understand that it is easy to promote free speech for those you like and agree with.

            Principles come into play when you have to promote free speech for those you do not like and do not agree with.

            It is not necessary to CONDONE someone's behavior in order to observe that behavior is within their rights.

            There are lots of things people do that I do not approve of or condone that I none-the-less maintain they have the right to do.

            If you only support free speech you like, you don't support free speech.

          3. You don't have to take our word for it:

            "Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to 'sexual impurity' or has a tendency to 'excite lustful thoughts.' This is community censorship in one of its worst forms."

            --William O. Douglas, 1957. Associate Justice of the Supreme Court of the United States.

            I do NOT condone his speech, nor does anybody else here. I do NOT condone violent, vile, hatemongering speech. But I DO condone an individual's right to speak, even things I do not like, in a public place without fear of governmental violence. What he said is wretched, but that is hardly cause to put him in prison. Fire him? Cool. Restraining order? Great. Let his life fall apart around him.

            But prison? I see little need to take away a man's freedom, for who-knows-how-long, simply becuase he lost his temper, repeatedly, and vented with an angry post on FB.

            1. Here's something that happened to someone I know just last week.

              Back when he was a teenager his girlfriend broke up with him. Later he saw with some other guy, lost his temper and yelled "I'm going to kill you". That caused him to be arrested and to avoid bigger punishments agreed to go to the psych ward for a few days.

              Fast forward fifteen years or so and he goes to a gun show and fills out an application to buy a gun. He neglects to check the box that asks "have you ever been committed for psychological reasons" and while he waited for his background check to be processed the cops arrived and handcuffed him.

              That "I'll kill you" stayed with him for decades.

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    1. I didn't inkw being fisted by primates while asphyxiating oneself on Internet cam paid so well. Good for her!

  6. Apart from the different context of his statements, there is the rather obvious difference that he is writing about actual, specific people. Ice-T, to my knowledge, never wrote a song that went, "I'm going to go kill Mr. Roger Goodbody, of 1245 Milner Lane, Athens, GA." Johnny Cash sang about killing Delia, who is NOT A REAL PERSON. The only one that really comes to mind that fits the mold is Mojo Nixon, with his timeless classic, "Don Henley Must Die". Given that Don Henley joined him on stage once to perform the song, I think we can safely assume there is no actual threat there.

    Write all the revenge fantasies you want. Start including specific people, people who you might have a reason to wish injury to, and who knows when they stop being revenge fantasies and start being future plans? His intentions can only be known to him, but there is a very real implied threat. If someone who had a reason to be angry with me suddenly started writing about how they were going to kill me, I would want them locked up.

    1. Finally. A post from someone that actually understands the difference.

      Thank you.

      1. Nice example, however apply this to Eminem?

        Oh right, Eminem was writing about HIS ex-wife, TOTALLY different!

    2. Wait... I follow this until you say "I would want them locked up."

      Maybe I'm the odd man out, here, but I am simply not willing to throw somebody in prison for wanting to do something violent and expressing that aloud. It is not that it is Okay for th person to say it (it isn't), it is that it puts too much power into the hands of the authorities. I do not want to live in a country where me ranting in a public place, possibly in anger, and saying something that makes somebody feel uncomfortable ("I'ma cut you, I'm a cut you real bad!" "I hope you die in a fire, and I have matches." "Eat Shit and Die!") can cause me to lose TWO YEARS AND TWO MONTHS OF MY LIFE. Do you want your neighbor to have that authority? Or your coworker? Or your ex-partner? Or the kid from High School that never liked you? I don't.

  7. Writing stuff online shouldn't be the basis for a criminal sentence. Civil restraining order, definitely, with criminal sanctions for violating it. This seems like a pretty clear First Amendment violation without proof he was actually a threat.

    1. So if I post that I don't like you and consider you a danger to society and I am going to hunt you down and cut your throat, you're OK with that?

      1. If you post that, I would not approve, not condone it, and consider you a jerk.

        I might even consider getting a restraining order against you if I believed you were "for real".

        I would not try to put you in jail for saying it though. They are just WORDS.

      2. Stop being purposely obtuse.

        By your line of logic, nearly every person on these boards should be arrested for expressing in detail thier desire to torture and kill some of the resident trolls. I myself have expressed such feelings on occasion.

        Granted, most people hear don't know each other personally, but that's irrelevant. I can't even begin to count how many times I've seen people who have personal relationships lie about and slam each other on social media sites. Is the appropriate response in those instances for the opposing parties to sue for slander?

        Do you not realize the proverbial can of worms that this case opened? Do you believe free speech should be regulated based on fear?

        Nevermind the fact hundreds of songs have been written that wish death and violence, by name, upon people known by the writer.

        The restraining order was the appropriate legal action. Until the shithead is proven to do more than spout off on FB, proactive imprisonment should never be on the table.

        I suppose if you wish to be disingenuous and ignore context then by all means, keep advocating legal punishment for using words in an order you find objectionable.

        P.S. Oh, don't forget, tomorrow is the day we kill the president.

  8. The criminal law requires two essential elements for every crime under the common law. (1) "mens rea" (intent) and (2) "actus reus" (action). If you merely think about a crime but do nothing in furtherance of it, you have not committed a crime.

    The interplay of the first amendment and mens rea is that you can utter your antisocial thoughts and they are protected speech because mere thoughts without action are not crimes. It only becomes a crime when you take a step towards doing it, even if the crime is not completed (ie "attempted" crime).

    The statute here attempts to criminalize mere expression of thought based on its content. Is posting violent thoughts on Facebook an act in furtherance of a crime? I hardly think so. Did he buy a knife? Stalk his wife? Show up at work after he was fired? That doesn't seem to be the facts here. So he is being convicted of a crime for merely expressing antisocial thoughts.

    My opinion is that the statute should be invalidated as violating the first amendment. We have to protect all speech that is "mere speech" regardless of its content because that protects revolutionary speech.

    But I think his conviction will be upheld. Bad facts make for bad law. And this guy's rants are antisocial and scary. The state will make the argument that we have to take such things seriously to counteract stalking and domestic violence earlier. Since that is a sympathetic argument, the Supreme Court will do jurisprudential gymnastics to uphold the statute.

    1. Hell, why not? We--Americans and non-Americans alike--are already buying into literal pre-crime laws. Why not add some more?

  9. Excellent point, it WOULD be different if it could be shown he had taken some action toward fulfilling his threats.

    I assume since that was not brought up at trial, and would have made the charges a slam dunk, he actually took no action.

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  11. Here is my issue with it:

    If someone were to write that stuff about me on facebook or say it out loud and the police were not going to do anything about it, I would seriously consider taking him out myself. If someone made those threats against my wife or children, I would definitely take them out myself. Would I be justified in that? Maybe, maybe not, but it is not a chance I'd be willing to take.

  12. my neighbor's step-sister makes $62 an hour on the internet . She has been fired for seven months but last month her paycheck was $20988 just working on the internet for a few hours. visit this site....
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    1. Acutally, at $62 an hour, you would need to work 338.5 hours to get a $20988 monthly paycheck, which is equivalent to 11.3 hours of work a day with no days off or 15.4 hours a day with a normal work schedule. That is NOT a few hours, that is a lot. Also, we are assuming that is the gross paycheck amount, not net.

      Though, as fun as that little exercise was, if someone is clicking your link, there is a 100% chance they don't have the math abilities to figure that out to begin with.

      1. But it is fun to blow huge holes in scams.
        Did I tell you about the inheritance I have waiting in Nigeria if I send....?

        1. /i/But it is fun to blow huge holes in scams.
          Did I tell you about the inheritance I have waiting in Nigeria if I send....?//i/

          Send what Sevo?

          Wait - are children in danger? How can we help blow holes in these scams with your waiting inheritance and save the children at the same time?

          What kind of creatures are the scams again? Are they a type of Vermicious Knids with poor spelling ability?

  13. so... just a thought: it should be a crime also to post a video of the French or Vietnamese national anthem online.

    "Ils viennent jusque dans vos bras ?gorger vos fils, vos compagnes!"?
    "Qu'un sang impur abreuve nos sillons!"?

    (They come to into your arms to cut your sons, your companions)
    (Let impure blood water our furrows)

    "???ng vinh quang x?y x?c qu?n th?"?
    (The [road to] victory is paved with corpses of the enemies)

    That's a terrorist threat.

  14. Words without action should never be a crime, ever.

    When did sticks and stones become less fearsome than tweets?

  15. Isn't Rod Blagojavich serving 15 years in federal prison for saying that he wasn't trying to sell a senate seat, which to the Feds was a lie, but to Blagojavich it was the truth, because he never got money for or gave anyone the seat? Maybe he should have said he wanted to kill Obama instead of sell his seat, he'd be a free man now.

    1. Citytrekker|12.1.14 @ 9:24PM|#
      "Isn't Rod Blagojavich serving 15 years in federal prison for saying that he wasn't trying to sell a senate seat, which to the Feds was a lie, but to Blagojavich it was the truth, because he never got money for or gave anyone the seat? Maybe he should have said he wanted to kill Obama instead of sell his seat, he'd be a free man now."

      Gee, Citytrekker, I'll bet you never heard of "false equivalence", since you're such an ignoramus!
      Go away.

      1. Sevo, you're a jackass. That's a true statement.

  16. To answer the question for the SCOTUS: When the threats are carried out.

  17. How many knots in your knickers are too many?

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  19. I'm disappointed with the number of frequent commenters who call themselves libertarians yet seem to take no issue with the concept of restraining orders. Fucking shameful.

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