Supreme Court throws out Facebook threats conviction

Ruling in a case testing the limits of free speech online, the Supreme Court Monday held that a person cannot be convicted of making threats simply because others might regard the language as threatening.

However, a majority of the court declined to say how much proof should be required in such cases, leaving to lower courts to make new decisions on whether recklessness would be sufficient to convict someone or whether prosecutors would have to show that someone intended to provoke fear.


The case before the court involved Anthony Elonis, who was convicted of threatening his wife, a kindergarten class, police officers and an FBI agent. Elonis maintained that his graphic statements, posted on Facebook, were tongue-in-cheek remarks in the style often used by rap musicians.

Chief Justice John Roberts, who somewhat surprisingly rose to the defense of rappers at oral arguments in the case last year, took the helm in rejecting Elonis’s conviction. Writing for the court’s majority, Roberts said asking whether a “reasonable person” would have regarded Elonis’s statements as threats was not enough to sustain a criminal conviction in such a case.

“The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error,” Roberts wrote. “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”

Among Elonis’s online postings: “There’s one way to love you but a thousand ways to kill you” and “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

Including Roberts, seven justices signed onto the court’s majority opinion, but the other two justices — Samuel Alito and Clarence Thomas — objected to the court dodging the question of whether the First Amendment would allow someone to be convicted for a merely reckless statement or whether he or she must have intended to threaten.

“The Court’s disposition of this case is certain to cause confusion and serious problems,” Alito wrote. “Attorneys and judges need to know which mental state is required for conviction…..There is no justification for the court’s refusal to provide an answer.”

Alito — who often takes a broad view of government powers in criminal cases raising free speech issues — said he would hold that merely reckless statements could sustain a conviction.

Thomas also faulted the court for allegedly failing to grapple with the core issues in the case, but he said he would have upheld Elonis’s conviction based solely on proof that he made the statements deemed threatening and understood the words in them.

“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,” Thomas wrote.