United States of American v. Anthony Douglas Elonis
United States of America v. Anthony Douglas Elonis represents a pivotal case for First Amendment rights as they pertain to the concept of subjective intent, true threats, and speech made over a digital medium. Historical precedent has set a legal standard for non-protected First Amendment speech in which a subject’s speech may be deemed threatening or considered threatening under a reasonable standard. Previous standards, however, have tied and implicated instances of true threat with tangible or vocal speech. In United States v. Elonis, specified speech is made over a digital medium and thus represents a different mode for the transference of speech or possible threats. As such, this case seeks to examine previous standards and how these standards apply to this new medium. In addition, this case represents an opportunity for legal precedent as it pertains to online speech.
In May 2010 at the onset of the initial complaint, Elonis’s wife, Tara Elonis, separated and moved herself and their two children out of the family household. During the period of initial separation, Elonis was working at Dorney Park and Wildwater Kingdom amusement park. As an employee, Elonis held positions of operations supervisor and communications technician. Following the formal separation of Elonis’s wife and children, park employees and supervisors bean noticing and documenting trends of emotional distress and resulting abhorrent work behavior. Early reported incidents included claims of Elonis distressfully crying at his work station, subsequently leading to him being sent home, and claims of sexual harassment against other park employees. One employee, Amber Morrissey, made five claims of sexual harassment against Elonis stating, “[Elonis] came into the office where she was working alone late at night, and began to undress in front of her.” Following this and other incidents of reported sexual harassment by Elonis against park employees, Elonis posted a picture from the “Dorney Park Halloween Haunt” to Facebook. Per the Facebook post, the picture shows a costumed Elonis holding a knife to the neck of Morrissey with the caption, “I wish (United States of America v. Anthony Douglas Elonis, 2013, p. 3).” Upon park supervisors seeing the post, Elonis was subsequently fired. Ensuing his official firing, Elonis continued to post disgruntled and possibly threating speech on his Facebook page. As documented, one threat which was aimed at Dorney Park and Wildwater Kingdom stated,
Ya’ll saying I had access to keys for the fucking gates, that I have sinister plans for all my friends and must have taken home a couple. Ya’ll 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 fucking scary? (United States of America v. Anthony Douglas Elonis, p. 4)
This Facebook post was the basis for Count One of Elonis’s indictment- “Threats to patrons and employees of Dorney Park and Wildwater Kingdom amusement park (United States of America v. Anthony Douglas Elonis, p. 10).”
During this period, Elonis also began posting menacing statements directed towards his wife, Tara Elonis, and her family members. These posts included violent and possibly threatening connotations and mentioned vocabulary alluding to rape and murder. One instance stated,
If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder. (United States of America v. Anthony Douglas Elonis, p. 4)
Elonis further agitated the situation by responding to a post by Tara Elonis’s sister stating, “Tell [their son] he should dress up as a matricide for Halloween. I don’t know what his costume would entail though. Maybe [Tara Elonis’s] head on a stick (United States of America v. Anthony Douglas Elonis, p. 4).” Current events and tensions culminated when a third documented post by Elonis in October of that year stated,
There’s 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. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave… (United States of America v. Anthony Douglas Elonis, p. 5)
Following this and previously documented statements, Tara Elonis was issued a State court Protection of Abuse on November 4, 2010. Following this state issued order, Elonis continued to post on Facebook in a violent and menacing manner. In particular, Elonis detailed the abstract but distinct legal obscurities of wording which possibly described killing his wife. Excerpts from the post on November 7 stated,
Did you know it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt...Um what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. That’s illegal. Very, very illegal…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. Insanely illegal. (United States of America v. Anthony Douglas Elonis, p. 6)
This online statement was the basis for Count Two of Elonis’s indictment-“Threats to his wife [Tara Elonis] (United States of America v. Anthony Douglas Elonis, p. 10).”
Violently phrased Facebook posts continued as on November 15 Elonis stated, “…And if worse comes to worse I’ve got enough explosives to take care of the state police and sheriff’s department (United States of America v. Anthony Douglas Elonis, p. 7).” This message, deemed threatening and malicious in nature, was the basis for Count Three of Elonis’s indictment- “Threats to employees of the Pennsylvania State Police and Berks County Sheriff’s Department (United States of America v. Anthony Douglas Elonis, p. 10).”
Immediately following this Facebook post aimed at local law enforcement, Elonis continued his tirade with a subsequent Facebook post which stated,
That’s it, I’ve had 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? (United States of America v. Anthony Douglas Elonis, p. 8)
This online statement, deemed a threat against a school and the population within it, was the basis for Count Four of Elonis’s indictment- “Threats to a kindergarten class (United States of America v. Anthony Douglas Elonis, p. 10).”
Following documented Facebook posts made in a threatening or malicious manner towards Dorney Park and Wildwater Kingdom, Tara Elonis, and an unspecified kindergarten class, FBI Agent Denise Stevens began monitoring Elonis’s Facebook and overall digital presence. Due to received complaints and the virulent nature of the multiple Facebook posts, FBI Agent Stevens and other agents attempted to interview Elonis at his home. Upon arrival at the home of Elonis, FBI Agents were greeted by Elonis’s father and subsequently Elonis himself. After introducing themselves as law enforcement, Elonis inquired if he was “free to go” and consequently shut the door on the FBI Agents. The same day following the attempted interview, Elonis again posted on Facebook stating,
Little Agent Lady stood so close. Took all the strength I had not to turn the bitch 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 bringing yo’ SWAT and an explosives expert while you’re at it. Cause little y’all know, I was strapped wit’ a bomb… (United States of America v. Anthony Douglas Elonis, p. 9)
This post was the basis for Count Five of Elonis’s indictment- “Threats to an FBI Agent (United States of America v. Anthony Douglas Elonis, p. 10).”
Ensuing the monitoring and documentation of his Facebook presence and posts, Elonis was arrested on December 8, 2010. Elonis was subsequently charged under 18 U.S.C. § 875 (c) with “transmitting in interstate commerce communications containing a threat to injure the person of another.” As stated in 18 U.S.C. § 875 (c),
Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. (18 U.S.C. §875. Interstate Communications, 1948)
Following the dissemination of formal charges, the grand jury for the United States District Court for the Eastern District of Pennsylvania indicted Elonis on five counts:
Count One-threats to patrons and employees of Dorney Park and Wildwater Kingdom, Count Two-Threats to his wife [Tara Elonis], Count Three- threats to employees of the Pennsylvania State Police and Berks County Sheriff’s Department, Count Four-threats to a kindergarten class, and Count Five-threats to an FBI agent. (United States of America v. Anthony Douglas Elonis, p. 10)
In the resulting legal proceedings from the District Court, Elonis was convicted on Counts Two, Three, Four, and Five. Elonis was subsequently sentenced to “44 months’ imprisonment followed by three years supervised release (United States of America v. Anthony Douglas Elonis, p. 10).”
On appeal to the United States Court of Appeals for the Third Circuit, Elonis argued on the grounds his Facebook posts do not meet the standard for “subjective intent” as articulated in Virginia v. Black. Further, Elonis argued the standard for true threats as, “subjective intent” and threats with knowledge and willingness, as set by the United States Court of Appeals for the Third Circuit in United States v. Kosma and United States v. Himelwright ought to be overturned due to the precedent ruling set in Virginia v. Black.
As dictated by United States Court of Appeals for the Third Circuit in United States v. Kosma, standards of true threat require a “reasonable person” perceive threats as serious or with full intent to action. In United States v. Kosma, Kosma is charged with making threats on the life of the President of the United States and of the life a former President of the United States. Per evidence stated in the original trial, Kosma was found guilty of the former two counts of making threats against the life of the President of the United States. On appeal to the United States Court of Appeals for the Third District, the Court creates a “reasonable speaker standard” for speech which is not protected by the First Amendment, stating,
[true threats require that] the defendant intentionally make a statement written or oral, that in a context or under such circumstance wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the president, and that the statement not be the result of mistake, duress, or coercion. (United States of America v. Louis Kosma, 1991)
Per this ruling, the Court found that a requirement for the “subjective intent” to convey speech as threatening harms the ability to limit future credible or possibly credible threats. Consequently, a jury need only prove a threat is made with “knowingly and willfully”. This standard of knowledge and willingness is further quantified in the United States Court of Appeals for the Third District’s ruling on United States v. Richard Himelwright. In this case, the Court states the government only needs to establish a burden of knowledge and willingness when providing a guilty verdict for instances and actions whereas threats may be “reasonably perceived as threatening bodily injury (United States of America v. Richard Himelwright, 1994).”
In review by the United States Court of Appeals for the Third Circuit in United States v. Elonis on a standard of subjective intent, it is paramount to examine the precedent set by the Supreme Court of the United States in Virginia v. Black and if their ruling overturns a standard of objective intent and reasonableness as set by the United States Court of Appeals for the Third Circuit.
Virginia v. Black was a 2003 Supreme Court case which examined First Amendment rights regarding actions and speech taken in a possibly threatening manner. Per the facts of the case, Virginia Statute §18.2-423 stated it is criminally prosecutable “for any person…with the intent of intimidating any person or group…to burn a cross on the property of another, a highway or other public place (Virgina V. Barry Elton Black, Richard J. Elliott, and Jonathan O'Mara, 2003).” Upon review of the Virginia Statute, the Supreme Court analyzed the true threat exceptions set in Watts v. United States and R.A.V. v. City of St. Paul. In Watts v United States, the Supreme Court held, “True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals (Watts v. United States, 1969).”
Additionally, the Supreme Court held in R.A.V. v. City of St. Paul that,
…The speaker need not actually intend to carry out the threat. Rather, a prohibition of true threats ‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatening violence will occur. (R.A.V. v. City of St. Paul, Minnesota, 1992)
Based upon these precedents, the Supreme Court held that legal limitations on cross burning is in itself, unconstitutional, but cross burning with the express intent to intimidate can be constitutionally restricted. Utilizing precedent standard set forth in Watts v. United States and R.A.V. v. City of St. Paul, speech which holds an intent to convey a threatening demeanor or act of violence is not protected by First Amendment rights.
Upon analysis of the ruling set in Virginia v. Black, the United States Court of Appeals for the Third Circuit holds the ruling of the District Court to be consistent with previously set precedents. In alignment with the language of the aforementioned cases, the jury need only prove an individual acted with “[intent] to make communication” and not with an intent to subjectively act on specific intents (United States of America v. Anthony Douglas Elonis, p. 16). The ruling set in United States v. Kosma is accordingly not overruled by prescedent set in Virgina v. Black and an objective standard of intent for threatening speech is appropriate and justfied.
In consistency with the holding in Virgina v. Black and the ruling by the United States Court of Appeals for the Third Circuit, cases by the United States Court of Appeals for the Fourth Circuit, Sixth Circuit, and Eigth Circuit seperatly held, prescedent does not neccesitate a jury must ascertain the subjective intent of an individual to threaten or act on violent and threatening communication. The United States Court of Appeals for the Fourth Circuit in United States v. White held Virgina v. Black “gave no indication it was redefining a general intent crime such as §875 c to be a specific intent crime (United States of America v. William A. White, 2012).” In United States v. Jeffries, the United States Court of Appeals for the Sixth Circuit held the precedent set in Virginia v. Black does not require proof of subjective intent because the analyzed Virginia Statute already stated a standard for subjective intent and constitutional arguments pertaining to objective standards of intent versus subjective standards of intent were not offered. Further, the United States Court of Appeals for the Sixth Circuit stated principles of a “reasonable-person” are suitable for deciding intent of speech because it “winnows out protected speech because, instead of ignoring context, it forces jurors to examine the circumstances in which a statement is made (United States of America v. Franklin Delano Jeffries, 2012).” Finally and in further agreement, the United States Court of Appeals for the Eighth Circuit in United States v. Nicklas stated Virginia v. Black, “says nothing about imposing a subjective standard on other threat-prohibiting statutes…” and legislation codified in§ 875(c) does not necessitate proof of subjective intent (United States of America v. David Eugene Nicklas, 2013).
The final element being argued by Elonis during his appeal to the United States Court of Appeals for the Third Circuit is the concept of “interstate commerce.” Specifically, Elonis contended his Fifth and Fourteenth Amendment rights to due process were violated through jury instruction and principles used to elucidate internet usage as an automatic means for interstate communication. During the trial in the United States District Court for the Eastern District of Pennsylvania, the jury was instructed with the following language,
Because of the interstate nature of the Internet, if you find beyond a reasonable doubt that the defendant used the Internet in communicating a threat, then that communication traveled in interstate commerce…If the Internet was used in moving the communications, then it traveled in interstate commerce. (United States of America v. Anthony Douglas Elonis, 2012)
On this basis of these instructions, Elonis claimed the Court and the government is mandated to prove interstate communication occurred over the internet. As a direct element of his conviction, Elonis contended that absolute proof of interstate communications having occurred over the internet is unconditionally required.
In United States v. MacEwan, the United States Court of Appeals for the Third Circuit reviewed the intricacies of interstate commerce and how it directly relates to interstate transmission on the internet. In this case, MacEwan attempted to argue that child pornography which he had received on the internet was not transmitted through interstate lines and consequently, was not prosecutable as such. Although MacEwan cited a Comcast employee who discussed the inability to individually distinguish internet transmission start and end-points, the government inevitably ruled against MacEwan and stated,
[W]e conclude that because of the very interstate nature of the Internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to [the] user, the data has traveled in interstate commerce. (United States of America v. James E. MacEwan, 2006)
Based on this ruling, the use of the internet as a means for communication directly requires its use as a medium for interstate commerce. As such, both MacEwan and Elonis are subject to legal restraints extending from crimes utilizing the internet as a means for transmission or communication.
Established on precedent cases and arguments made in the self-defense of Elonis, there were three core issues presented before the United States Court of Appeals for the Third Circuit. First, “whether the true threats exemption to speech protection under the First Amendment requires a jury to find the defendant subjectively intended his statements to be understood as threats?” Second and subsequently, does the ruling by the Supreme Court of the United States in Virginia v. Black overturn the aforementioned precedents in United States v. Kosma and United States v. Himelwright (United States of America v. Anthony Douglas Elonis, p. 1)? Finally, is the internet, as a medium for communication, inexplicably linked to laws pertaining to interstate commerce and communication? Based upon these issues and presented arguments, the United States Court of Appeals for the Third Circuit upheld the prior conviction of Elonis and the ruling by the United States District Court for the Eastern District of Pennsylvania.
The petition for a writ of certiorari to the Supreme Court of the United States was granted on June 16, 2014. The key issue being addressed in arguments to the Supreme Court in Elonis v. United States is,
Whether, consistent with the First Amendment and Virginia v. Black…conviction of threatening another person requires proof of the defendant’s subjective intent to threaten…or whether it is enough to show that a ‘reasonable person’ would regard the statement as threatening… (On Petition for a Write of Certiorari to the United States Court of Appeals for the Third Circuit in Anthony D. Elonis v. United States of America, 2014)
Official arguments were heard by the Supreme Court on December 1, 2014. Arguments for Elonis were made by John P. Elwood of Washington D.C. and arguments for the United States were made by the Deputy Solicitor General of the Department of Justice, Michael R. Dreeben of Washington D.C. (Elwood, 2015). Elonis v. United States is currently pending decision by the Supreme Court.
In defense of Elonis and subjective standards for possibly threatening speech, amici curiae briefs were filed by numerous organizations including, People for Ethical Treatment of Animals, Inc., the Center for Individual Rights, and the American Civil Liberties Union, et al. In the brief filed by the American Civil Liberties Union, et al., or the ACLU, the importance of protected online speech is argued. As discussed, the internet represents a medium for speech with the ability to traverse basic boundaries, and historic obstacles implicit with public and verbal speech. Mediums such as online newspapers, blogs, videos, and social media sites enable users to communicate with millions of individuals on a global scale. As noted by the ACLU, “the ideas, opinions, emotions, actions and desires capable of communication through the Internet are limited only by the human capacity for expression.” As such, First Amendment protections ought to be guaranteed to online speech as strongly as public and verbal speech. The ACLU cites two key concerns related to First Amendment protections in the digital sphere. First, speech conducted on the internet is often subject to larger than intended audiences. A private blog or Facebook post, intended to be viewed by a few people, might accidently and adversely be viewed by millions of individuals. Secondly, online communication often lacks visual content and as such, may quickly become “decontextualized.” Speech made with an intended purpose, for an intended audience, has the possibly of losing context when viewed by an unintended individual or group. Consequently, the ACLU argues that a subjective intent standard for threats would take these two points into full consideration when deciding the criminally of possibly threatening online speech (Amicus Curiae Brief of the American Civil Liberties Union, et. al, 2014).
Objective intent standards for threatening speech made on the internet raises key First Amendment questions and issues concerning the internet as a forum for cathartic speech or speech made purely for entertainment purposes. In his defense, Elonis claimed the Facebook posts were “therapeutic” and not intended as a threat (Mallonee & Brown, 2014). Further, Elonis stated he was “just an aspiring rapper who likes the attention (Denniston, 2014).” In addition to the defense of Elonis and of a subjective intent standard, Elonis claimed his Facebook posts were merely “rap lyrics.” Based on this defense, an objective standard of intent for internet posts may inevitably implicate and criminalize lyrics written for entertainment purposes. Although Solicitor General Dreeben argued rap lyrics, “like those of rapper Eminem” have the “clear purpose [of] entertainment” and are easily distinguished as such, Chief Justice John Roberts countered the argument by stating, “What about the budding rapper who is writing his first rap song (Mallonee & Brown, 2014)?” As such, it may be difficult to distinguish and fully articulate what speech is made with entertainment value and what is not.
If the Supreme Court rules in favor of the decision made by the United States Court of Appeals for the Third Circuit, an objective standard of threats made over the internet will become precedent law. Although future implications are difficult to quantify, speech made for purposes of entertainment, art, or general individual therapy may become self-censored or inevitably criminalized. In the pending decision, Elonis v. United States represents an opportunity to clarify First Amendment protections for speech made on the internet. As discussed in article by Garrett Epps, threatening speech made over the internet falls between unprotected threatening words mailed to a victim and protected threatening words written in a personal diary. As stated by Epps in conjecture regarding the Supreme Court ruling,
Make it too easy to prove a threat, and government can muzzle those it dislikes; make it too hard, and the rest of us—on the job, on the streets, and in our homes—are at the mercy of men like Elonis. (Epps, 2014)
18 U.S.C. §875. Interstate Communications. (1948, June 25). Retrieved from U.S. Government Publishing Office: http://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/html/USCODE-2011-title18-partI-chap41-sec875.htm
Amicus Curiae Brief of the American Civil Liberties Union, et. al, 134 S. Ct. 2819 (Supreme Court of the United States August 22, 2014).
Denniston, Lyle (2014, November 29). Argument preview: Social media as a crime scene. Retrieved from Supreme Court of the United States Blog: http://www.scotusblog.com/2014/11/argument-preview-the-social-media-as-a-crime-scene/
Elwood, John (2015, May 11). Elonis v. United States. Retrieved from SCOUTUSblog: Supreme Court of the United States Blog: http://www.scotusblog.com/case-files/cases/elonis-v-united-states/
Epps, Garrett (2014, November 29). When Does the First Amendment Protect Threats? Retrieved from The Atlantic : http://www.theatlantic.com/politics/archive/2014/11/when-does-the-first-amendment-protect-threats-elonis-united-states-supreme-court-free-speech/383255/
Mallonee, MK, & Brown, Pamela (2014, December 1). Facebook threats case heard at Supreme Court. Retrieved from CNN: http://www.cnn.com/2014/12/01/politics/supreme-court-elonis-vs-u-s-free-speech/
On Petition for a Write of Certiorari to the United States Court of Appeals for the Third Circuit in Anthony D. Elonis v. United States of America, 134 S. Ct. 2819 (Supreme Court of the United States June 16, 2014).
R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (Supreme Court of the United States June 22, 1992).
United States of America v. Anthony Douglas Elonis, 897 F. Supp. 2d 335 (United States District Court for the Eastern District of Pennsylvania September 25, 2012).
United States of America v. Anthony Douglas Elonis, 730 F.3d 321 (United States Court of Appeals for the Third Circuit September 19, 2013).
United States of America v. David Eugene Nicklas, 713 F. 3d 435 (United States Court of Appeals for the Eighth Circuit April 26, 2013).
United States of America v. Franklin Delano Jeffries, 692 F. 3d 498 (United States Court of Appeals for the Sixth Circuit August 27, 2012).
United States of America v. James E. MacEwan, 445 F. 3d 237 (United States Court of Appeals for the Third Circuit April 5, 2006).
United States of America v. Louis Kosma, 91-1423 (United States Court of Appeals for the Third Circuit December 13, 1991).
United States of America v. Richard Himelwright, 94-7206 (United States Court of Appeals for the Third Circuit November 25, 1994).
United States of America v. William A. White, 670 F. 3d 498 (United States Court of Appeals for the Fourth Circuit March 1, 2012).
Virgina V. Barry Elton Black, Richard J. Elliott, and Jonathan O'Mara, 538 U.S. 343 (Supreme Court of the United States April 7, 2003).
Watts v. United States, 394 U.S. 705 (Supreme Court of the United States April 21, 1969).
For the media law final, I examined the court case- Elonis v. United States. As the case has not yet been decided upon by the Supreme Court of the United States, a large bulk of my references came directly from the opinion of the United States Court of Appeals for the Third Circuit. This opinion and the remainder of my primary source court opinions came directly from Google searches. These searches directly results in full-text pdf’s of the various cases and opinions which I directly cited and references in my paper. For my secondary sources, I utilized Google and SJSU library resources to find various online newspaper articles. These references included articles from CNN and the Supreme Court Blog.
The vast majority of my final paper utilized primary sources to describe the factual background of the case, cite precedents involved in the case and in a future decision by the Supreme Court, and to speculate on possible implications surrounding expected decisions. Further, I utilized secondary sources to accompany my primary sources and to add conjecture about possible outcomes and implications of my case.