Free Speech And Social Media


In Elonis v. United States, the Supreme Court addressed the issue of free speech in the social media era. The case dealt with a Pennsylvania man, Anthony Elonis, who posted a number of Facebook rants threatening his wife, his coworkers, a kindergarten class, and law enforcement officers. Upon seeing some of Mr. Elonis’ posts, his boss fired him and contacted the FBI. When the posts continued, Mr. Elonis was charged federally with several counts of transmitting threats to injure other persons. At trial, Mr. Elonis requested a jury instruction that the Government was required to show his threats were “true threats”. Instead, the District Court gave an instruction which stated Mr. Elonis could be found guilty if the jury believed his statements would be interpreted as a threat by a reasonable person. Mr. Elonis was convicted and the ruling was appealed by the Third Circuit who held the necessary mens rea for conviction required only the intent to communicate words the defendant understands and a reasonable person would view as a threat.


In overturning the Third Circuit’s ruling, the Supremes held the Circuit Court had applied the wrong standard. Rather than the negligence like standard the Third Circuit had applied, Justice Roberts made reference to the long line of case law showing the Court’s reluctance to use a civil standard to satisfy a finding of criminal intent. Instead, Justice Roberts stated the mental stated requirement is satisfied only if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat. The Court did not discuss whether speech which is posted recklessly would meet this standard.


Although the Court remanded on the issue of Mr. Elonis’ mental state and did not rule on the First Amendment issue, it kind of did. At least insofar as what mental state is required for speech to be considered threatening and therefore not covered by First Amendment guarantees. For now, the lower court will have to determine if Mr. Elonis meant the words he posted, statements like “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”