The Atlanta Lawyer August/September 2015 | Page 36

SLIP Student Essays
Elonis v. United States: The United States Supreme
Court Interprets Threats Made on Facebook
By Maryellen Malone
Pace Academy, Interned with DeKalb County
District Attorney, Juvenile Division

T

he rise of social media has created a whole host of
legal issues, which allows users to anonymously post
questionable content. This is not the case with Anthony Douglas Elonis. Under the pseudonym “Tone Dougie,”
Elonis posted his original rap lyrics to Facebook. These lyrics contained violent language and graphic imagery concerning his wife, co-workers, a kindergarten class, and state
and federal law enforcement. These posts contained numerous “disclaimers” claiming that the lyrics were “fictitious and
not intended to depict real persons.” Elonis alleged that the
lyrics were art and an expression of his First Amendment
rights.
Others saw his “art” as threatening. His boss fired him for posts
pertaining to his co-workers. The same posts that Elonis views
as a therapeutic exercise, others view as grounds for a threeyear protection from abuse order for his wife. The FBI began
monitoring Elonis when notified by his previous employer of
the violent content of his posts. He was later charged with 5
counts of violating 18 U. S. C. §875(c). This statue makes it
a “felony 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.” Elonis requested
a jury instruction that would require the Government to prove
that he intended to communicate a “true threat.” The District
Court told the jury that the Government only had to prove
that a reasonable person would view Elonis’s statement as
a threat. He was convicted on four out of five counts and
renewed his objection to the jury instruction on appeal.
The question before the Supreme Court was whether the
Court at the trial level had correctly instructed the jury on
the intent required to convict Elonis under the statute. The
Supreme Court held that “requiring only negligence with
respect to the communication of a threat, is not sufficient to
support a conviction under Section 18 U. S. C. §875(c). To be
convicted under Section 18 U. S. C. §875(c), a defendant must
transmit a communication that contains a thr