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Media Alerts - United States v. Anthony Elonis - Third Circuit
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September 20, 2013
  United States v. Anthony Elonis - Third Circuit
Headline: Facebook postings that threatened defendant's wife and others were true threats, not protected by the First Amendment; conviction did not require proof that defendant subjectively intended the statements to be threats

Area of Law: First Amendment

Issue(s) Presented: Whether the true threats exception to speech protection under the First Amendment requires a jury to find the defendant subjectively intended his statements to be understood as threats.

Brief Summary:
In the span of a few months, Anthony Elonis's wife left him and he subsequently lost his job for posting inappropriate messages about a co-worker on Facebook. After losing his job, Elonis began posting very violent messages on his Facebook page, referencing his wife, the police force, and even local elementary schools. He was eventually arrested and charged with transmitting in interstate commerce communications containing a threat to injure the person of another. Third Circuit precedent clearly says that the test for whether speech falls under the true threats exception to the First Amendment is whether a reasonable person would perceive it to be a serious expression of an intention to inflict bodily harm. However, in Virginia v. Black, the Supreme Court held that the subjective intent to threaten was required under the true threat expression. The Third Circuit distinguished the Supreme Court case on the basis that it involved a cross-burning, which is conduct which can be interpreted as a threat or not. The statements made in this case, on the other hand, were actual communications with threatening messages to specific individuals. Thus, the Third Circuit maintained its "reasonable person" standard for assessing a true threat exception to the First Amendment.

Significance (if any): The Third Circuit determined that the Supreme Court case Virginia v. Black did not alter Third Circuit precedent to require a subjective intent under the true threat exception to protection of free speech.

Extended Summary (if applicable):
After his wife of seven years and two children left him, Anthony Elonis was having a tough time at work, and was even sent home on a few occasions for being too upset to work. He was employed at Dorney Park and Wildwater Kingdom. One of the employees that Elonis supervised, Amber Morrissey, had filed several sexual harassment complaints against him. Elonis then posted a photograph on his Facebook page, taken at the Dorney Park Halloween Haunt, of him holding a knife to Morrissey's neck with the caption, "I wish." A supervisor saw this and immediately fired him. Two days after he was fired, Morrissey began posting violent messages about his former employer on his Facebook page. He also posted Facebook messages about killing his wife. Based on these statements, a state court issued Elonis' wife a Protection From Abuse order. Ms. Elonis testified at trial that she took the threats seriously, and feared for her own and her children's lives. Elonis's Facebook threats kept escalating to a point where he was threatening police forces and elementary schools. By this point, the FBI became involved and, when they went to his home to interview him, Elonis refused to speak with them, and posted a message about it later on Facebook.

On December 8, 2010, Elonis was arrested and charged with transmitting in interstate commerce communications containing a threat to injure the person of another in violation of 18 USC ยง 875(c). The District Court denied the motion to dismiss on grounds that Elonis's intent was a question of fact for the jury. A jury eventually convicted Elonis, and he was sentenced to forty-four months in prison and three years' supervised release.

Elonis argued that the Supreme Court case Virginia v. Black held that a subjective intent to threaten was required under the true threat exception to the First Amendment; thus his statements were protected speech, not threats. He argued that this overturned the Third Circuit case, U.S. v. Kosma, which held that the statement is a threat if the reasonable person would perceive it to be a serious expression of an intention to inflict bodily harm. The Third Circuit rejected a subjective standard in the past, and had to decide whether the Supreme Court decision overturned this precedent. The Court reasoned that limiting the definition of true threats to those statements where the speaker subjectively intends to threaten would fail to protect individuals from the fear of violence and disruption of their lives, because it would protect speech that even a reasonable person would find threatening. Thus, the Third Circuit finds that the true threats exception to the First Amendment does not require a subjective intent to threaten where there are specific threats to specific individuals. The Court distinguished Virginia v. Black, which invalidated a state statute that made cross-burning prima facie evidence of intimidation, and not words. It reasoned that cross burning is an action that may or may not constitute a threat, whereas Elonis's Facebook messages, whether or not he intended to threaten, made specific threats to specific individuals. The Court also mentioned that a majority of other circuits considering this issue have held that Virginia v. Black does not require a subjective intent. Thus, the Court finds that Virginia v. Black does not alter Third Circuit precedent.
The full opinion is available at http://www2.ca3.uscourts.gov/opinarch/123798p.pdf
Panel (if known): Scirica, Hardiman, and Aldisert, Circuit Judges

Argument (if known): June 14, 2013

Date of Issued Opinion: September 19, 2013

Docket Number: 12-3798

Decided: September 19, 2013

Case Alert Author: Alexandra Perry

Counsel (if known):
Ronald H. Levine, Esq. [ARGUED]
Abraham J. Rein, Esq.
Post & Schell
1600 John F. Kennedy Boulevard
Four Penn Center, 14th Floor
Philadelphia, PA 19103
Counsel for Appellant

Sherri A. Stephan, Esq.
Office of United States Attorney
504 West Hamilton Street
Suite 3701
Allentown, PA 18101

Robert A. Zauzmer, Esq. [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee

Author of Opinion: Scirica, Circuit Judge

Case Alert Circuit Supervisor: Professor Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 09/20/2013 08:41 AM     3rd Circuit  

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