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Vol. 10, No. 2 | August 2015
Elonis v. United States (United States Supreme Court): Social Media Posts and Specific Criminal Intent?
by Eric Snow
Instructor of Criminal Justice
On June 1, 2015, the Supreme Court of the United States decided Elonis v. United States, a case involving social media posts and free speech. Elonis began posting graphic and violent rap lyrics to Facebook after his wife left him and took their children with her. He utilized the name “Tone Dougie” as his online persona and made several disclaimers that the posts were fictitious and not directed at any specific individuals. Elonis was charged by the Federal Bureau of Investigation for five counts of communicating a threat to injure another person. The charges were related to posts made in reference to his co-workers, wife, law enforcement, a kindergarten class, and a Federal agent.
At trial, Elonis argued the posts were similar to other rap lyrics utilized by a mainstream rapper that included fantasies of killing an ex-wife. Additionally, he argued the jury should be instructed that in order to find him guilty of the crimes, they must be convinced that he intended the posts as actual threats. The trial court denied this motion and included wording that Elonis should be convicted if a reasonable person would view the statements as a threat. The distinction between these sets of jury instructions involves actual criminal intent, or mens rea, intended by the poster in the instructions requested by Elonis and the much broader “reasonable person” standard that does not account for the poster’s actual intent in the instructions requested by the prosecutor.
Interestingly, this case was not argued or decided based on a freedom of speech argument as most would likely anticipate. When evaluating the legal arguments, the Court determined the statute did not specifically include a reference to the mental state of the offender, but the Court has previously held that criminal intent is necessary. The reasonableness standard has been utilized by the criminal justice system in various instances including civil liability or search and seizure applications, but the Court determined that to base the defendant’s potential criminal intent on the views of a reasonable person rather than the defendant’s actual intent was an error.
The Court’s decision does not prohibit convictions of a similar nature based on social media posts, but rather states law enforcement and prosecutors must prove the posts are specific threats in the eyes of the poster. This could potentially be proved by a confession from the defendant of the defendant’s intent, testimony of a witness of the defendant’s intent, or evidence presented that the defendant had a specific plan to carry out the threats, but none of these were specifically mentioned by the Court. At least one respected commentator has suggested that this decision would also permit convictions in cases where the person posting on social media knows that the information posted will place a particular person in fear of harm. Additionally, Virginia law utilizes the probable cause standard based on reasonableness for issuance of protective orders so a protective order would likely be appropriate based on the facts of this case.
It bears mentioning that the Court was interpreting a federal threats statute in this case. It did not address the extent to which the Free Speech Clause in the First Amendment to the Constitution imposes limitations on the kinds of threats that can be criminalized (sometimes referred to as “true threats”). Thus, the decision has no direct effect on any state threats statutes, such as Virginia Code §18.2-60 (written threats of death or bodily injury) or §18.2-427 (threats by phone), although state courts might well be influenced by the Elonis decision as to the state of mind required by its own state’s threats statutes.
Included below are the exact posts made by Elonis to show the violent and threatening nature that alone was insufficient for a conviction.
Statement to co-workers and the public at an amusement park:
“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?”
Statement to wife:
“Hi, I’m Tone Elonis. Did you know that it’s illegal for me to say I want tokill 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]. . . .”
Statement to law enforcement:
“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.”
Statement to kindergarten:
“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?”
Statement to Federal agent:
“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[laughter]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’ [BOOM!]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!]”.
 Eugene Volokh, “The Supreme Court Doesn’t Decide When Speech Becomes a Constitutionally Unprotected ‘True Threat’,” - https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/01/the-supreme-court-doesnt-decide-when-speech-becomes-a-constitutionally-unprotected-true-threat/.
 Emergency protective orders authorized in certain cases; penalty, § 16.1-253.4 of the Code of Virginia.
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.