Elonis v. United States

Decision Date01 June 2015
Docket NumberNo. 13–983.,13–983.
Citation135 S.Ct. 2001,192 L.Ed.2d 1,575 U.S. 723
Parties Anthony Douglas ELONIS, Petitioner v. UNITED STATES.
CourtU.S. Supreme Court

John P. Elwood, Washington, DC, for Petitioner.

Michael R. Dreeben, Washington, DC, for Respondent.

Ronald H. Levine, Abraham J. Rein, Post & Schell, P.C., Philadelphia, PA, John P. Elwood, Counsel of Record, Ralph C. Mayrell, Vinson & Elkins LLP, Washington, DC, Daniel R. Ortiz, Toby J. Heytens, University of Virginia School of Law, Supreme Court Litigation Clinic, Charlottesville, VA, David T. Goldberg, Donahue & Goldberg LLP, New York, NY, Mark T. Stancil, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Leslie R. Caldwell, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Eric J. Feigin, Assistant to the Solicitor General, Sangita K. Rao, Attorney, Department of Justice, Washington, DC, for Respondent.

Chief Justice ROBERTS delivered the opinion of the Court.

Federal law makes it a crime to transmit in interstate commerce "any communication containing any threat ... to injure the person of another." 18 U.S.C. § 875(c). Petitioner was convicted of violating this provision under instructions that required the jury to find that he communicated what a reasonable person would regard as a threat. The question is whether the statute also requires that the defendant be aware of the threatening nature of the communication, and—if not—whether the First Amendment requires such a showing.


Anthony Douglas Elonis was an active user of the social networking Web site Facebook. Users of that Web site may post items on their Facebook page that are accessible to other users, including Facebook "friends" who are notified when new content is posted. In May 2010, Elonis's wife of nearly seven years left him, taking with her their two young children. Elonis began "listening to more violent music" and posting self-styled "rap" lyrics inspired by the music. App. 204, 226.

Eventually, Elonis changed the user name on his Facebook page from his actual name to a rap-style nom de plume, "Tone Dougie," to distinguish himself from his "on-line persona." Id ., at 249, 265. The lyrics Elonis posted as "Tone Dougie" included graphically violent language and imagery. This material was often interspersed with disclaimers that the lyrics were "fictitious," with no intentional "resemblance to real persons." Id., at 331, 329. Elonis posted an explanation to another Facebook user that "I'm doing this for me. My writing is therapeutic." Id., at 329; see also id., at 205 (testifying that it "helps me to deal with the pain").

Elonis's co-workers and friends viewed the posts in a different light. Around Halloween of 2010, Elonis posted a photograph of himself and a co-worker at a "Halloween Haunt" event at the amusement park where they worked. In the photograph, Elonis was holding a toy knife against his co-worker's neck, and in the caption Elonis wrote, "I wish." Id., at 340. Elonis was not Facebook friends with the co-worker and did not "tag" her, a Facebook feature that would have alerted her to the posting. Id., at 175; Brief for Petitioner 6, 9. But the chief of park security was a Facebook "friend" of Elonis, saw the photograph, and fired him. App. 114–116; Brief for Petitioner 9.

In response, Elonis posted a new entry on his Facebook page:

"Moles! Didn't I tell y'all I had several? Y'all sayin' I had access to keys for all the f***in' gates. That I have sinister plans for all my friends and must have taken home a couple. Y'all think it's too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I'm still the main attraction. Whoever thought the Halloween Haunt could be so f***in' scary?" App. 332.

This post became the basis for Count One of Elonis's subsequent indictment, threatening park patrons and employees.

Elonis's posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife. Shortly after he was fired, Elonis posted an adaptation of a satirical sketch that he and his wife had watched together.

Id., at 164–165, 207. In the actual sketch, called " It's Illegal to Say ...," a comedian explains that it is illegal for a person to say he wishes to kill the President, but not illegal to explain that it is illegal for him to say that. When Elonis posted the script of the sketch, however, he substituted his wife for the President. The posting was part of the basis for Count Two of the indictment, threatening his wife:

"Hi, I'm Tone Elonis.
Did you know that it's illegal for me to say I want to kill my wife? ...
It's one of the only sentences that I'm not allowed to say....
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife....
Um, but what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife....
But not illegal to say with a mortar launcher.
Because that's its own sentence....
I also found out that it's incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room....
Yet even more illegal to show an illustrated diagram. [diagram of the house]...." Id., at 333.

The details about the home were accurate. Id., at 154. At the bottom of the post, Elonis included a link to the video of the original skit, and wrote, "Art is about pushing limits. I'm willing to go to jail for my Constitutional rights. Are you?" Id., at 333.

After viewing some of Elonis's posts, his wife felt "extremely afraid for [her] life." Id., at 156. A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order). Id., at 148–150. Elonis referred to the order in another post on his "Tone Dougie" page, also included in Count Two of the indictment:

"Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
that was improperly granted in the first place
Me thinks the Judge needs an education
on true threat jurisprudence
And prison time'll add zeros to my settlement ...
And if worse comes to worse
I've got enough explosives
to take care of the State Police and the Sheriff's Department." Id., at 334.

At the bottom of this post was a link to the Wikipedia article on "Freedom of speech." Ibid. Elonis's reference to the police was the basis for Count Three of his indictment, threatening law enforcement officers.

That same month, interspersed with posts about a movie Elonis liked and observations on a comedian's social commentary, id., at 356–358, Elonis posted an entry that gave rise to Count Four of his indictment:

"That's it, I've had about enough
I'm checking out and making a name for myself
Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a Kindergarten class
The only question is ... which one?" Id., at 335.

Meanwhile, park security had informed both local police and the Federal Bureau of Investigation about Elonis's posts, and FBI Agent Denise Stevens had created a Facebook account to monitor his online activity. Id., at 49–51, 125. After the post about a school shooting, Agent Stevens and her partner visited Elonis at his house. Id., at 65–66. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another entry on his Facebook page, called "Little Agent Lady," which led to Count Five:

"You know your s***'s ridiculous
when you have the FBI knockin' at yo' door
Little Agent lady stood so close
Took all the strength I had not to turn the b**** ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin' from her jugular in the arms of her partner
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus' waitin' for y'all to handcuff me and pat me down
Touch the detonator in my pocket and we're all goin'
Are all the pieces comin' together?
S***, I'm just a crazy sociopath
that gets off playin' you stupid f***s like a fiddle
And if y'all didn't hear, I'm gonna be famous
Cause I'm just an aspiring rapper who likes the attention
who happens to be under investigation for terrorism
cause y'all think I'm ready to turn the Valley into Fallujah But I ain't gonna tell you which bridge is gonna fall
into which river or road
And if you really believe this s***
I'll have some bridge rubble to sell you tomorrow
[BOOM!][BOOM!][BOOM!]" Id., at 336.

A grand jury indicted Elonis for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent, all in violation of 18 U.S.C. § 875(c). App. 14–17. In the District Court, Elonis moved to dismiss the indictment for failing to allege that he had intended to threaten anyone. The District Court denied the motion, holding that Third Circuit precedent required only that Elonis "intentionally made the communication, not that he intended to make a threat." App. to Pet. for Cert. 51a. At trial, Elonis testified that his posts emulated the rap lyrics of the well-known performer Eminem, some of which involve fantasies about killing his ex-wife. App. 225. In Elonis's view, he had posted "nothing ... that hasn't been said already." Id., at 205. The Government presented as witnesses Elonis's wife and co-workers, all of whom said they felt afraid and viewed Elonis's posts as serious threats. See, e.g., id., at 153, 158.

Elonis requested a jury instruction...

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