Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015)

Anthony Douglas Elonis (aka “Tone Dougie”) posted on Facebook various self-styled rap lyrics containing graphically violent language and imagery concerning his wife (who had left him), co-workers, a kindergarten class and state and federal law enforcement. Although Elonis interspersed his posts with disclaimers about the First Amendment and statements that the lyrics were “fictitious” and not intended to depict real persons, many people who knew him saw the posts as threatening, including his wife (who had obtained a protection-from-abuse order against him) and his boss who had fired him for threatening co-workers. After Elonis’s former employer informed the FBI about the posts, he was arrested and prosecuted for five counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat… to injure the person of another.” Elonis was convicted of four of the five counts but argued on appeal that his requested (and denied) jury instruction that the government had to prove that he had intended to communicate a “true threat” should have been given. The United States Supreme Court reversed the conviction and remanded the case for further proceedings, holding that the government has to prove the defendant transmitted a communication for the purpose of issuing a threat or with the knowledge that the communication would be viewed as a threat – and that merely proving that the defendant’s posts could be viewed by a reasonable person as threatening is not enough.