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Anthony Douglas Elonis was convicted and sentenced to forty-four months in prison for a series of 2011 Facebook posts that prosecutors argued were in violation of a federal law making it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” In Elonis v. United States, argued on December 1, 2014, the Court will answer whether conviction of threatening another person under 18 U.S.C. § 875(c) 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, as both a First Amendment and a statutory interpretation issue. Anthony Elonis argues that his postings on Facebook were not “true threats” because he actually had no “subjective intent to threaten another person.” Several of his supporters allege that “genre of artistic expression through which a message is conveyed is relevant to a court’s evaluation of alleged threats,” and that Mr. Elonis’ posts, many of which identify him as an “aspiring rapper” and take the form of rap lyrics, are protected artistic expression. The government argues that Mr. Elonis’s statements were properly judged by two measures: first, did he make his statements intentionally (without regard to what he was thinking), and, second, would “a reasonable person” read the words used and their context as conveying to the target of the message that they would be injured or killed? Our expert offered his impressions of the oral arguments to a Teleforum audience.

  • Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation