Supreme Court

Supreme Court Rules for Criminal Defendant Who Posted Violent, Threatening Rap Lyrics to Facebook

Federal conviction overturned in Elonis v. United States


Anthony Elonis claimed that he was "just an aspiring rapper" when he posted a series of violent, profanity-laced writings on Facebook, including accounts of him murdering his estranged wife, murdering his boss and co-workers, and murdering others. "Art is about pushing limits," he wrote at one point. "I'm willing to go to jail for my Constitutional rights."

The federal government took Elonis up on that offer, charging him with five 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 federal jury eventually convicted him on four counts and sentenced him to 44 months in prison.

Credit: C-SPAN

Today the U.S. Supreme Court threw out Elonis' conviction. "The jury was instructed that the Government need prove only that a reasonable person would regard Elonis's communications as threats, and that was error," declared the majority opinion of Chief Justice John Roberts. "Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state."

According to Roberts, "Elonis's conviction…was premised solely on how his posts would be understood by a reasonable person. Such a 'reasonable person' standard is a familiar feature of civil liability in tort law, but is inconsistent with 'the conventional requirement for criminal conduct—awareness of some wrongdoing.'"

Until today's decision, this case also questioned whether or not Elonis' writings should be protected by the First Amendment. In Elonis' view, his Facebook posts were no different than the graphic rap lyrics of artists such as Eminem. According to the federal government, however, Elonis was making "true threats" of violence against others. "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 government argued.

But because Chief Justice Roberts' limited his judgment to the meaning of the federal criminal statute, "it is not necessary to consider any First Amendment issues."

Writing in dissent, Justice Clarence Thomas faulted his colleagues for improperly voiding Elonis' conviction while failing to provide a clear standard that will help decide similar cases in the future. The Court's judgment, Thomas wrote,

throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent. Although I am sympathetic to my colleagues' policy concerns about the risks associated with threat prosecutions, the answer to such fears is not to discard our traditional approach to state-of-mind requirements in criminal law. Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were "true threats" unprotected by the First Amendment, I would affirm the judgment below.

The Supreme Court's opinion in Elonis v. United States is available here.

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31 responses to “Supreme Court Rules for Criminal Defendant Who Posted Violent, Threatening Rap Lyrics to Facebook

  1. …but is inconsistent with ‘the conventional requirement for criminal conduct?awareness of some wrongdoing.'”


    1. If you were a lawyer, you’d understand.

      1. Then how the heck are us commoners suppose to know if what we are doing is legal or illegal?

        1. What they mean, for example, is that if you post satirical mimicry in the “name” of a party you’re mocking, then you have the requisite “awareness of wrongdoing.” They were right not to get into any First Amendment technicalities, because we all know that when someone engages in speech that we really don’t like, and is aware of his wrongdoing, the “free expression” baloney doesn’t count. See the documentation of America’s leading criminal satire case at:

        2. It’s not about awareness of legality but awareness that you are causing harm, more or less.

      2. You personal injury lawyers cost our economy billions every year. You people are nothing but ambulance chasing crooks! If you ask a jury for a one million dollar judgment, the idiots will give you ten million. Every consumer pays several thousand more every year for goods and services because of our a**hole trial lawyers. In regards to this court decision, I agree with the court. Threats and stalking statutes are way too broad as it is. 44 months in prison is way too harsh of a sentence for just words on a computer. Although, I have read about people being sentenced to life in prison without parole for putting sugar in a persons mailbox. Yet, our government crooks get away with murder, and face no penalty or even a criminal charge.

      3. Personal injury lawyers are nothing but ambulance chasing crooks.

    2. The court finally made a good decision. Threats and stalking statutes are way to broad at it is. I heard of a man who got ten years in prison, with no prior record for sending his ex wife flowers. So much for the idea of fairness. What happened to the prohibition on cruel and unusual punishment? Our judges hand out fines and prison time like candy.

  2. Mens rea, isn’t dead?

    1. It pretty much is. That looks like a problem with Thomas’s dissent: it assumes a standard is in place that really isn’t any more.

      Caveat: haven’t read the opinions yet.

  3. Justice Thomas makes a valid point. Why is the SCOTUS essentially deciding a case individually? That isn’t a sustainable system. They should have ruled in the defendant’s favor and set a clear standard for future cases.

    1. Well, no one else in the FedGov does their job, why should SCOTUS?

  4. Quote:

    “Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with ‘the conventional requirement for criminal conduct?awareness of some wrongdoing.'””

    What?? Why then, have I heard so many judges say that ignorance of the law is not an acceptable defense? I’ve heard this even when it is easily demonstrable that the defendant was unaware of the law, or the law as extremely obscure (as so many are these days).

    1. Correction: *is extremely obscure.

    2. The disconnect is that mens rea was a criminal law requirement back when the criminal law dealt with actual crimes with actual victims, such that it was reasonable to say that nobody could really violate the law without knowing (at some level) that they were doing something wrong.

      When the vast majority of “criminal” violations don’t have a victim, and may involve highly technical and obscure administrative requirements, you have to discard mens rea. So we pretty much have.

      1. Otherwise they would have to prove that a drug dealer felt bad about dealing drugs in order to get a conviction? That would be an interesting world indeed…

        1. No, only that he knew he was committing a criminal act (as defined by law, not by the natural right to control yourself and your property).

          Mens rea became an obstacle to ever more nebulous laws, such as unknowingingly violating foreign laws when importing goods from those foreign countries, and thus has been gradually eroded.

          1. Its that “[actual] knowledge that you violated the law” dimension of mens rea that can’t be maintained in our current “three felonies a day” legal system.

            You can say “ignorance of the law is no defense” when it is implausible for someone to say that they didn’t know X was against the law, because X creates actual victims or violates social norms of morality. These days, though, it is simply a fact that everyone, including judges, lawyers, and cops, is ignorant of most of the law. But, we keep pretending that ignorance of the law is just a pretext for squirreling out of a prosecution, because otherwise we’d have to get rid of the vast majority of “malum prohibitum” crimes.

            1. Interesting, so basically judges, lawyers and cops are just choosing whoever gets the benefit of the doubt and who doesn’t.

              1. Basically, yes.


    “Thus, rather than imposing a knowledge standard, ?2000e?2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” (italics in original)

  6. From the LAT –…..story.html

    “The Supreme Court made it harder Monday to punish people who post threatening comments online, ruling that prosecutors must show the sender knew what he or she was doing and intended to threaten someone.”

    “It is a setback for victims of domestic violence, who say prosecutors need more leeway to go after ex-spouses, boyfriends and others who post specific threats on the Internet.”

    When free speech wins, male rapists wins. Vote Clinton.

    1. The court made the right decision by reversing the conviction. Threats, stalking, and DV statutes are way to broad as it is. And the sentences are usually way too harsh.. Someday you might get prosecuted under one of these bull crap statutes. Then you will understand that gov currently has way too much power. Hillary is a crook, just like the rest of them. Its about time we got a victory for the constitution.

  7. Which part of this constituted interstate commerce?

    There only act of commerce should have been between him and his local internet provider. Just because Facebook houses their servers in a different state doesn’t mean he conducted any sort of commerce while posting these idiotic messages, unless he was trying to sell them.

    1. We all know SCOTUS doesn’t wanna hear a challenge to their previous Commerce Clause.

      1. Precious commerce clause*

  8. Don’t confuse mens rea with knowledge. They’re not the same thing. Mens rea is the “culpable mental state” required to be guilty of a crime. One need not have read the statute on vehicular homicide to be guilty of it if you’re driving at 85 through a school zone and clip a kid. You can say with a straight face you never intended that to happen, but a reckless disregard for the natural consequences of your action will get you the necessary culpable mental state.

    It gets a little dicier when you get into specific intent crimes. That’s where judges (include SC justices) tend to lose their minds a bit. Conveying a threat is a specific intent crime, for sure. You have to intend the message to a specific recipient and intend that it will be perceived as a threat. i.e. You might say “I’ll kill you, man!” with a garden hose pointed at your neighbor and mean it with all the malice in your heart – but it would still be awfully hard to convict you, especially when your neighbor laughs at you. Threats have to demonstrate both a present capability to carry it out along with the requisite mens rea. This is usually known as the joinder of both the mens rea and actus reus. There are famous cases around this.

    I need to go read this, except that the more I read the S.Ct. the more depressed I get about being a lawyer.

  9. Today the U.S. Supreme Court threw out Elonis’ conviction.

    Tomorrow he might commit a crime and the prosecution will nail him with his postings.

  10. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ??????

  11. Should so-called
    “true threats” (as aleged in Elonis), be criminally proscribed in a “libertarian” society? Unlike most issues, there appears to be NO consensus in the Movement about this topic. Cf. Stephan Kinsella (pro-“anti-‘threat'” laws) vs. Michael S. Rozeff (anti-“terrorist [sic] threat” laws), at Lewellyn

  12. 44 months in fed prison for threats. It is about time our high court made the right decision and reversed the conviction. We have threats and stalking statutes that are way to broad. It allows prosecutors and personal injury lawyers to bring action for minor indiscretions. Yet our politicians can get away with any thing they want.. For example, we have police that get away with shooting unarmed people in the back and they never get charged with a crime. Dennis Hasterd, former house speaker, got away with molesting kids years ago. Our personal injury lawyers and politicians have us walking through life on glass and living in fear that we don’t violate any statutes or regulations. Yet they can do what they want and face no consequences. I recently saw a man get ten years in fed prison for sending his ex wife flowers. He had no prior record. I heard about people getting life in fed prison for putting sugar in a neighbors mailbox. And our personal injury lawyers cost our economy millions each year for bogus lawsuits. Our crooks in Washington even eliminated the statute of limitations for all crimes except, white collar crimes. That is because they are all white collar criminals themselves.

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