In May 2010, Anthony Douglas Elonis’s wife of nearly seven years left him, taking with her their two young children. Elonis was an active user of the social networking web site Facebook.

After his family left him, Elonis began “listening to more violent music” and posting on Facebook self-styled “rap” lyrics inspired by the music. Eventually, Elonis changed the user name on his Facebook page from his actual name to “Tone Dougie,” to distinguish himself from his “on-line persona.” The lyrics Elonis posted as “Tone Dougie” included graphically violent language and imagery. This material was often interspersed with disclaimers that the lyrics were “ficti­tious,” with no intentional “resemblance to real persons.” Elonis posted an explanation on Facebook explaining that “I’m doing this for me. My writing is therapeutic.”

Elonis’s posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife. After viewing some of Elonis’s posts, his wife felt “ex­tremely afraid for [her] life.” A state court granted a restraining order against Elonis. In addition, the Federal Bureau of Investigation began to investigate Elonis’s posts, and created a Face-book account to monitor his online activity. After a post about a school shooting, two FBI agents visited Elonis at his house. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another entry on his Facebook page in which he discussed killing the agents.

Elonis was eventually arrested and indicted, accused of having violated 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.”  In the federal district court, Elonis moved to dismiss the indict­ment for failing to allege that he had intended to threaten anyone. The district court denied the motion.

At trial, Elonis testified that his posts emulated the rap lyrics of the well-known performer Eminem, some of which involved fantasies about killing his ex-wife. In Elonis’s view, he had posted “nothing . . . that hasn’t been said already.” The Government presented as witnesses Elonis’s wife and others, all of whom said they felt afraid and viewed Elonis’s posts as serious threats. Elonis requested a jury instruction that “the govern­ment must prove that he intended to communicate a “true threat,” defined as one in which the maker “would foresee that the statement would be interpreted by those to whom the maker communicates the state­ment as a serious expression of an intention to inflict bodily injury or take the life of an individual.” The district court denied that request.

A jury convicted Eloni, and he was sentenced to three years, eight months’ imprisonment and three years’ supervised release.

Elonis renewed his challenge to the jury instructions in the Court of Appeals, contending that the jury should have been required to find that he intended his posts to be “true threats.” The Court of Appeals disagreed. On appeal, the Supreme Court granted certiorari.

On review, the Supreme Court reversed. The Court held that proof of an intent to threaten was necessary for conviction. Elonis’s conviction was premised solely on how his posts would be understood by a “reasonable person.” Though a familiar standard of civil liability in tort law, the Court found the “reasonable person” standard to be inconsistent with the conventional requirement for criminal conduct: a guilty mind, found to be “a necessary element in the indictment and proof of every crime.” Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks—“reduces culpability on the all-important element of the crime to negligence.” As a result, Elonis’s conviction must be reversed. 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 does not turn solely on the results of an act without considering the defendant’s mental state.

Justices Alito and Thomas dissented.

The case is annexed here – Anthony Douglas Elonis v. United States

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