Criminal Justice Essays on Elonis v. United States

Criminal Justice Essays on Elonis v. United States

Antony Elonis was arrested on Decembers 8, 2010   for violating the federal anti-threat statute under 18 U.S.C Section 875 (c). He was charged with five counts for posting threats on Facebook that showed intent to harm. Specifically, he was criminalized for threatening his wife, co-workers, FBI agent, a kindergarten class, and the police on Facebook. Before posting the suspecting threats, Elonis’s wife and family had left him, and he had also lost his job (Meier 20). His Facebook activities is what prompted his employer to fire him  and to further report him to the Federal Bureau of Investigation. The FBI findings were the cause of his arrest for committing a federal crime of transmitting information that threatened or implied to injure someone. At first he was tried in a district court of Pennsylvania, where he claimed that the statements he posted on Facebook were wrongly interpreted and that they were not threats, hence the court ought to dismiss the case. He argued that the statements he posted were not threats but ‘fiction”, a way of exploring language of art just like a popular artist who uses the same language in the lyrics of a song. Most of these posts had an additional disclaimer stating, ‘This is not a threat’. In contrast to  his argument, many of the people who knew him interpreted the texts as threats and said that the defendant knew exactly what he was doing. The trial court ruled that the ‘True threats’ are those that had an objective intention. The court further instructed that Elonis could be found guilty if a reasonable person interpreted his texts as threats, and refused to dismiss the case, convicting him of four accounts out of five accounts.

Elonis challenged the jury’s instructions and appealed the case for the third circuit, section 875 (c) which requires that one is convicted if he or she had the intention to communicate words that the defendant understands and that a reasonable person would view that as a threat. On this account, Elonis claimed that the word ‘threat’ by definition means an intent to harm, but the common definition of the word understands what the statement conveys and does not relate to the author’s mental state (Formichella 6). The court held that the third circuit which requires proof of negligence regarding alleged threatening texts cannot be sufficient to support convicting someone under section 875(c). It indicated that section 875 (c) failed to mention whether the defendant must intend that the communication had an element of threat, and the parties do not meet the statute’s mental state requirements. The U.S Courts of Appeals for the Third Circuit declared the earlier conviction, denying his claim that the posts were subjective, and held that a subjective intent standard cannot fully protect people from fear of violence (Formichella 7)

The government argued the case and stated that, first, courts should not imply unexpressed intent under the requirements of the section and the Congress did not mean to use the clause to defend crime of extortion rather it omitted the mental state requirements intentionally. Secondly, the court cannot disregard mere omission of criminal intent, and the accused does not have to know that his activities are illegal but should be criminalized if he is aware of the fact that his acts are offensive. Finally the courts should address mental state of recklessness, otherwise it would be unnecessary to consider the First Amendment issues.

Why the case is in Supreme Court

In November and December of 2014, the U.S Supreme Court agreed to hear the case to clarify what the government needs to prove. The Supreme Court addressed the government holding that the government can solely rely on words used by the defendant and their general context only by using the “reasonable person” standard. The Supreme Court added that if the standard is “subjective intent”, then the prosecutors must identify specific acts of the defendant to convince the jury that he meant to threaten the targets. The court held that the First Amendment which requires, “Congress shall make no law…abridging the freedom of speech”, does not fully define the application of unprotected speech and so cannot be relied on to make a ruling. It further disagreed with the subjective standard with regard to that the conviction cannot be based on a reasonable person’s interpretation. The court narrowed the grounds for conviction and based it on narrow statutory basis of the principles of mens rea without referencing the constitutional ‘true threats.’ This did not attend to majority’s pleas as these principles have minimum mental state required.

Majority opinion

By reversing the defender’s conviction, the Supreme Court made it hard to persecute people for the threats made on social media (Ferranti, 140). In writing for the majority, the Chief Justice John Roberts suggested that the persecutors must dig deep in cases of threatening statements other than proving how reasonable people would view those statements. The Chief Justice added that the defender’s state of mind should matter. He based the majority opinion on the criminal law principles that concern intent. According to the Chief Justice, the district court has made an error in using the reasonable person standard inconsistent with awareness of an offensive act. In his opinion, the defendant must possess the mentality of whether a text contains a threat or not. The court, therefore, minimised itself on reasonable standard and missed all important elements of a crime of negligence. He further held that the court should have noted that negligence standard was intended in the statutes of criminal law (Meier 18)

Justice Alito partially supported and partially dissented from the decision.. He argued that recklessness can be used to convict a defendant because it is wrong to act while disregarding risks. He also argued that constitution does not protect true threats but in the case of Elonis, the fact that he used works of art just like lyrics of rap artist, his context was constitutionally protected as works of art, and they were not protected from real threat (Ferranti 141)

A dissent was issued by Justice Thomas and wrote, “Our job is to decide questions, not create them, given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule, failure to which reveals the fractured foundation upon which today’s decision rests”. Justice Thomas held that the defendant must be able to give an ordinary definition of his texts but it is not for the Jury to decide whether they contained a threat or not. He further offered evidence that true threats were not afforded by the First Amendment protection as claimed by Elonis.

In my opinion, the opinion of Chief Justice Robert’s, namely, the majority’s opining that concerns negligence and state of mind in relation to criminal activities is the most reasonable one. There are many people who use social media, and the rate at which social media is growing has ignored the division between professional and personal conduct. The interactions on social media are open, and mostly one cannot control who views them. Issues arise when statements on social media are taken out of context. Though concerns for misconstruction commends on social media exit, the authorities must protect people from harassment, cyber bullying and threats. Since the First Amendment Act raises conflicting interest on free speech rights, the state, and federal law makers may draft laws to balance these interest and can serve as an escape route for individuals who want to be freed from their misconduct. The condition in which an act is executed should be a matter of concern, and people should be held accountable for any offensive words they say in a context. The legal standard somehow neglects the limits people should have in communication. Recklessness that is offending should be criminal negligence. Accordingly, I would argue that in the mens rea principle, recklessness is above the required standard of a mental state, and the Jury should convict a defendant in that case.



The Elonis case is clearly a case of contradictory opinions. Therefore, the Courts should, therefore, be keen in making a ruling to avoid creating a platform of defence in future in similar cases. Courts should be allowed to adjust laws in cases where the rights of a victim are not fully covered and prevent defenders from getting away with offenses. Laws should be interpreted by accommodating sensible opinions, and though the case is hard, it is the duty of the Supreme Court to make it easy to convict people who make threats on the social media.


Works cited

Ferranti, Jessica. “True-Threat Doctrine and Mental State at the Time of Speech.” Journal

of the American Academy of Psychiatry and the Law Online 44.2 (2016): 138-144.

Formichella, Jessica K. “A Reckless Guessing Game: Online Threats Against Women in

the Aftermath of Elonis v. United States.” (2017).

Meier, Joan S. “Brief of the Domestic Violence Legal Empowerment and Appeals

Project, Aequitas: The Prosecutors’ Resource on Violence Against Women,

& Futures Without Violence as Amici Curiae in Support of Respondent, Voisine

  1. United States, No. 14-10154 (US Jan. 26, 2016).” (2016).