September 23, 2019

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Supreme Court Limits Criminal Law’s Reach to Social Media Posts; Avoids First Amendment Issue

In the U.S. Supreme Court’s first opinion involving social media, the majority held that posting a threat is not a federal crime without proof of the defendant’s mental state.


Anthony Douglas Elonis posted rap lyrics on Facebook that contained violent statements about his wife, co-workers, a kindergarten class, and law enforcement.  He was charged with violating a federal criminal statute that makes it a crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”

At trial, Elonis requested a jury instruction that “the government must prove that he intended to communicate a true threat.”  The trial court did not provide that instruction, and instead told the jury that a true threat is “when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.”  Elonis appealed, and the U.S. Court of Appeals for the Third Circuit upheld the jury instruction.

The Supreme Court reversed the Third Circuit and trial court, concluding that the court erred by failing to instruct the jury to consider Elonis’s mental state.  The Supreme Court held that although the criminal statute does not explicitly require proof of intent, courts have long interpreted criminal statutes under the principle that “wrongdoing must be conscious to the criminal.”

“Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state,” Chief Justice John Roberts wrote for the majority in a 7-2 opinion.

Justices Samuel Alito and Clarence Thomas dissented.  Alito wrote that the opinion “is certain to cause confusion and serious problems” among attorneys and judges because the majority failed to describe the state of mind necessary for a conviction under the threat statute.  Thomas wrote that the statute only requires proof that “a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context.”

Elonis also argued that the First Amendment requires proof of intent.  Because the majority reached its conclusion based on its interpretation of the statute, it declined to address the constitutional argument.  Accordingly, the ruling is likely to have a larger impact on criminal law than it does on First Amendment law.



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