Criminal Minds Think Alike: The Problem Social Media Presents in Elonis v. US

It’s not news that social media has become a large part of everyday life for many people. Facebook. Instagram. Snapchat. All are platforms that have increasingly replaced face to face interactions and communications. They allow people to stay in touch, share pictures of their pets, or sometimes reveal their most disturbing thoughts during a dark time.

This is what happened with Anthony Elonis in the recently talked about Elonis v. United States case. Elonis was going through a divorce when he began posting controversial “lyrics” to his Facebook page under the pseudonym “Tone Dougie.” He made unusual and violent comments about his ex-wife, police officers, patrons of the park where he worked, and even a kindergarten class. His remarks resulted in him losing his job, and his ex-wife obtaining a three-year-protection-from-abuse order in court against him. On top of that, Elonis was brought in for criminal charges under 18 U.S.C. § 875(c) for “transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another….” Elonis claimed that his First Amendment right to free speech allowed him to make these comments online because they were not a “true threat.”

While important issues regarding the First Amendment and free speech may seem prevalent in a case such as this, the Supreme Court didn’t discuss them. Chief Justice Roberts wrote the majority opinion that stated the true issue here was that the jury that convicted Elonis of communicating interstate threats was instructed to use the wrong standard when determining if he met the elements of the crime. The district court instructed the jurors by saying that “[a] statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances 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 injury or take the life of an individual.” The court of appeals reviewed and agreed with these instructions, so the Supreme Court granted certiorari to review the case and define the correct standard that should be used.

The criminal statute 18 U.S.C. § 875 does not contain an explicit mentality requirement for communicating threats, and when a federal statute is silent on this issue, the Court reads into that statute a mental standard “which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’” Which means the defendant “generally must ‘know the facts that make his conduct fit the definition of the offense even if he doesn’t know that those facts give rise to a crime.’” The defendant must be the one aware of his wrongdoing, so Elonis’ mental state is important for determining if he can actually be convicted.

The Government’s argument against Elonis is that since he knew the “contents and context” of his post, and a reasonable person would recognize that the posts would be read as threats, then a conviction can be upheld. However, this reasonable person standard is a negligence standard typically used for tort and civil cases and the Court “has been reluctant to infer that [it] was intended in criminal statutes.” Chief Justice Roberts stated in the Court’s opinion that this reasonable person standard is not enough to convict someone of communicating threats under 18 U.S.C. § 875, and therefore the conviction was reversed and the case was remanded back down to the lower court so that the jury instruction could be modified. The Court did not determine the exact standard for mental state that should be applied for this crime, but only determined that the one used was incorrect.

Determining the correct standard to use in this case could end up being complicated and tedious because of the new territory it’s covering. Technology is continuing to change legal landscapes, and deciding how to interpret threats made online is another example of that. Social media adds an extra level of obscurity to its users and their actions, which not only makes it harder for a court to decide which standard of criminal mentality applies, but also harder for a jury to decide if that standard is met in order to make a conviction. Online posts can be vague, not directed towards anyone specific, and they can make it easier for the defendant to claim he had no intent of wrongdoing while making them. These added complications make presenting evidence and proving the elements of certain crimes difficult. So even though the conviction was thrown out, the Elonis case should still be watched. Whatever standard the lower court uses on remand may end up setting the precedent for similar social media based cases in the future.

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