Maris Snell


In spring of 2010, Anthony Elonis’s wife left him, taking their two children with her. Shortly thereafter, Elonis began posting violent and degrading material, frequently styled as “rap lyrics,” on Facebook. After Elonis posted an illustrated diagram depicting his wife’s home and provided hypothetical instructions on the best way to “fire a mortar launcher at her house,” she sought a protective order. Elonis learned of the order and redirected the focus of his threatening posts to include police officers, FBI agents, and even a kindergarten class.

A grand jury indicted Elonis for five counts of violating 18 U.S.C. § 875(c), a federal statute criminalizing the transmission of “any communication containing any threat . . . to injure the person of another.” At trial, Elonis asked the court to instruct the jury that “the government must prove that he intended to communicate a true threat.” The district court declined and instead instructed the jury to use an objective, “reasonable person” standard; the jury subsequently found Elonis guilty of four of the five counts against him. Elonis filed an appeal in the U.S. Court of Appeals for the Third Circuit, challenging the district court’s jury instruction, but the Third Circuit found no error in the instruction and affirmed the lower court’s judgment. In 2014, the U.S. Supreme Court granted certiorari, and in 2015 it reviewed and reversed the Third Circuit’s decision. The Court looked to the principles underlying criminal law and statutory construction and concluded a reasonable person standard, by itself, is not enough to justify criminal liability. The Court instead held that a defendant convicted under § 875(c) must have subjective intent to convey a threat. Despite its willingness to require a subjective intent standard, the Court refused to specify which level of intent—recklessness or knowledge—would suffice to violate the statute, nor did it address the apparent First Amendment concerns relevant to the decision. Lower courts must now find their own answers to the intent question and hope that their choice fits within the additional restraints imposed by the First Amendment.

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