On June 1, 2015, in Elonis v. United States, the U.S. Supreme Court ruled in a 7-2 decision that a Pennsylvania man’s conviction for posting threatening Facebook posts regarding his estranged wife was a reversible error.

The Supreme Court held that a higher standard than negligence was required for a valid conviction, with Chief Justice John Roberts adding that the act must be conscious to be considered criminal, with the defendant’s mental state to be considered in that analysis.

“The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’ communications as threats,” the Chief Justice stated.

Without answering the question of what makes a statement a prosecutable threat, the Court found that Anthony Douglas Elonis’ posts – for example, “There’s only one way to love you but a thousand ways to kill you”; “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts” – did not rise to that level.

Elonis argued that his postings were ”self-styled rap lyrics”: apparently violent out of context, but fictitious in his case. He maintained this position even though, after his wife had successfully secured a Protection from Abuse (“PFA”) order from a lower court, Elonis posted: “Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?”

The lower court had sentenced Elonis to forty-four months in prison in 2010, on four counts of making threatening communications. He was released in 2014.

Justice Samuel Alito concurred in part and dissented in part, and Justice Clarence Thomas dissented.

About the author:

Katie Burke is a senior associate with The Wald Law Group. She represents people in divorce and child custody cases, including complex financial dissolutions.