Elonis v. United States (2015) – Threats – 1st Amendment
In Elonis v. United States 575 US __ (2015), Chief Justice John G. Roberts, Jr. was joined by six justices who reversed a trial court conviction, which had been upheld by the 3rd U.S. Circuit Court of Appeals. They decided that Anthony Douglas Elonis had been improperly convicted of transmitting threats through postings on Facebook.
Elonis posted lyrics that appeared to be threatening but had disclaimers
Elonis had posted rap lyrics under the name of “Tone Dougie” that appeared to threaten his ex-wife, an FBI agent, and even a kindergarten class. However, he had included disclaimers indicating that his lyrics were “fictitious,” that they were “therapeutic,” that they emulated the lyrics of rap star Eminem, and that they were a proper exercise of Elonis’ First Amendment rights.
Trial court used ‘reasonable person’ standard to convict Elonis
At trial, Elonis requested the judge to instruct the jury that to convict him, the government must prove that he intended to convey a true threat. Instead, the court instructed jurors that they need only find that “a reasonable person” would interpret the words to constitute such a threat.
‘Reasonable person’ lowers standard for criminal conviction to negligence
Although the federal statute (18 USC Sec. 875 (c)) under which Elonis was convicted does not specify an individual’s requisite mental state, the Court has long insisted that “wrongdoing must be conscious to be criminal.” This is because criminal law has always insisted on actual blameworthiness as expressed in such terms as “mens rea, scienter, malice aforethought, guilty knowledge and the like.” A criminal defendant must “know the facts that make his conduct fit the definition of the offense.”
The reasonable person standard that the lower court employed effectively reduces the standard for a criminal conviction to that of negligence, which is more consistent with the standard for civil liability. Hamling v. United States (1974) established that individuals would not necessarily have to know whether materials they distributed were legally obscene to be convicted, but they would have to know “the character of what was sent.”
Although Elonis asserted that recklessness was not sufficient to show that he had uttered a true threat, neither he nor the government briefed this issue, and there were no conflicting circuit court opinions on the subject that the Court might review. The Supreme Court accordingly refused to decide whether a showing of recklessness would prove to be legally sufficient for such a criminal conviction.
Court overturned conviction
In a partial concurrence and a partial dissent, Justice Samuel Alito agreed that the Court appropriately sought to show that Elonis had mens rea but thought that an instruction requiring proof of recklessness would be sufficient to show this. Alito stressed that the First Amendment does not protect true threats, which “inflict great harm and have little if any social value.”
Despite Elonis’ reliance on professional performers who used similar lyrics, Alito observed that “’[t]aken in context,’ lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person.” Alito would accordingly remand the case to the court of appeals to decide “whether Elonis’ conviction could be upheld under a recklessness standard” and whether, alternatively, the instructions might be regardless as “harmless error.”
Dissenters pointed out that true threats are not protected by the First Amendment
In a dissenting opinion, Justice Clarence Thomas observed that nine of 11 circuits that had interpreted the statute had found that it required a showing of general intent. Thomas further thought that Elonis’s words met the objective standard for a true threat.
Elonis’ own belief about the legal status of his words is immaterial, Thomas said. Thomas denied that a showing of general intent is equivalent to a showing of mere negligence – “there is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat.”
Both English precedents and early state laws establish that freedom of speech has never included true threats, and “[w]e generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech.” Thomas cited cases involving “fighting words” and cross burning. Elonis is just as guilty of issuing a true threat, Thomas said, as he would be had he mailed obscene materials to his wife or to the kindergarten class that he threatened.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.
Maryland Law Review
With volume one dating back to 1936, the Maryland Law Review is the oldest journal at the University of Maryland Francis King Carey School of Law and the pre-eminent student authority on developments in Maryland case law in the State of Maryland
Maryland Law Review Volume 75 | Issue 4 Article 7
Elonis v. United States: The Need to Uphold Individual Rights to Free Speech While Protecting Victims of Online True Threats by Alison J. Best
Which can be download in PDF Here
To Learn More…. Read MORE Below and click the links
Learn More About True Threats Here below….
We also have the The Brandenburg v. Ohio (1969) – 1st Amendment
CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment
We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment
We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment
We also have the Watts v. United States – True Threat Test – 1st Amendment
We also have theClear and Present Danger Test – 1st Amendment
We also have theGravity of the Evil Test – 1st Amendment
We also have the Elonis v. United States (2015) – Threats – 1st Amendment
Learn More About What is Obscene….
We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment
We also have the Obscenity and Pornography – 1st Amendment
Learn More About Police, The Government Officials and You….
We also have theBrayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address
We also have thePublius v. Boyer-Vine –1st Amendment – Posting Police Address
We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests
We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests
We also have the Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment
We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – 1st Amendment
We also have the Introducing TEXT & EMAILDigital Evidencein California Courts – 1st Amendment
We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment
ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!
We also have the Penal Code 118 PC – California Penalty of “Perjury” Law
We also have theFederal Perjury – Definition by Law
We also have the Penal Code 132 PC – Offering False Evidence
We also have the Penal Code 134 PC – Preparing False Evidence
We also have thePenal Code 118.1 PC – Police Officers Filing False Reports
We also have the Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment
We also have the Penal Code 148.5 PC – Making a False Police Report in California
We also have the Penal Code 115 PC – Filing a False Document in California
Know Your Rights Click Here (must read!)
Under 42 U.S.C. $ection 1983 – Recoverable Damage$
42 U.S. Code § 1983– Civil Action for Deprivation of Right$
$ection 1983 Lawsuit – How to Bring a Civil Rights Claim
18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law
18 U.S. Code § 241 – Conspiracy against Right$
$uing for Misconduct – Know More of Your Right$
Police Misconduct in California – How to Bring a Lawsuit
New Supreme Court Ruling – makes it easier to sue police
RELATIONSHIPWITH YOURCHILDREN& YOURCONSTITUIONAL RIGHT$ + RULING$
YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK
We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment thisCODE PROTECTS all US CITIZENS
We also have the Amdt188.8.131.52.2 – Parental and Children’s Rights 5th Amendment thisCODE PROTECTS all US CITIZENS
We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment thisCODE PROTECTS all US CITIZENS
We also have the California Civil Code Section 52.1Interference with exercise or enjoyment of individual rights
We also have the Parent’s Rights & Children’s Bill of RightsSCOTUS RULINGS FOR YOUR PARENT RIGHTS
We also have a SEARCH of our site for all articles relatingfor PARENTS RIGHTS Help!
Contesting / Appeal an Order / Judgment / Charge
Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation
Cal. Code Civ. Proc. § 1008 Motion to Reconsider
Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise
Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case
CACI No. 1501 – Wrongful Use of Civil Proceedings
Penal Code “995 Motions” in California – Motion to Dismiss
WIC § 700.1 – If Court Grants Motion to Suppress as Evidence
Epic Criminal / Civil Rights SCOTUS Help – Click Here
Epic Parents SCOTUS Ruling – Parental Rights Help – Click Here