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Appeals Court Reinstates 'True Threat' Conviction Supreme Court Overturned, Still No Answers On First Amendment

All the way up to the Supreme Court and back and the question still remains unanswered.

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angry lawyer typing looking at computerA case about where free speech ends and “true threats” begin has made it all the way up to the Supreme Court and back and the question still remains unanswered.

Anthony Elonis has been engaged in a long legal battle in hopes of proving that a bunch of truly nasty things he posted on Facebook weren’t threats, but rather “rap lyrics” posted solely for entertainment purposes.

Pennsylvania man Anthony Elonis has historically enjoyed saying outrageous things on Facebook, such as how he would like to murder his estranged wife; shoot up an elementary school; sneak into an amusement park he was fired from to wreak havoc; slit the throats of a female co-worker and a female FBI agent; and use explosives on the state police, the sheriff’s department, and any SWAT team that might come to his house.

Elonis claimed these comments have been taken out of context — the context being that his persona online is larger-than-life and those reading these posts were well aware of his tendency to post inflammatory, outrageous rants. For those posts, Elonis was also taken out of context — at least as far as leading a normal day-to-day life is concerned. He was convicted and received a 44-month sentence.

The Supreme Court had a chance to examine the First Amendment issue at the center of it and hand down a ruling that might have cleared up some of the muddiness surrounding the dividing line between free speech and threats. Instead, it bypassed the First Amendment question and found procedural grounds for overturning Elonis’ conviction.

In light of the foregoing, Elonis’s conviction cannot stand. 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. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”

The case was remanded to the Third Circuit Court of Appeals with the conviction overturned and the First Amendment question unanswered. That doesn’t mean Elonis is a free man. The Appeals Court has reexamined the case in light of the Supreme Court’s extremely narrow finding and ruled[PDF] that it had been right the whole time.

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Anthony Elonis was convicted of violating 18 U.S.C. § 875(c), which prohibits transmitting in interstate commerce a communication containing a threat to injure the person of another. We affirmed his conviction on appeal, but the Supreme Court reversed our judgment. It held that the jury instruction regarding Elonis’s mental state was insufficient and therefore erroneous. On remand, we will once again affirm Elonis’s conviction because we hold the error was harmless.

The sole issue the Supreme Court directly addressed and found to be significant enough to overturn the conviction is nothing but a “harmless error” in the eyes of the Third Circuit. No definitive answers on free speech protections, and Anthony Elonis gets nothing more than a very long tour of the US court system culminating in an appeals court shrug.

(Opinion available on the next page…)

Appeals Court Reinstates ‘True Threat’ Conviction Supreme Court Overturned, Still No Answers On First Amendment

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