The Elonis v. United States case is ripe for discussion by students over what forms of expression are or are not guaranteed in the Constitution — and the blurry line in-between.
Published June 1, 2015. Updated May 1, 2018.
The Supreme Court skirted free speech issues June 1, 2015, in its ruling in the case of a Pennsylvania man convicted of making threats on Facebook. The court, in an opinion backed by seven justices, didn’t decide whether Anthony Elonis’s violent posts after his wife left him were protected by the First Amendment. Instead, the justices reversed the conviction based on jury instructions and proof of intent.
Regardless of the decision, the Elonis case is ripe for discussion by students over what forms of expression are or are not guaranteed in the Constitution — and the blurry line in-between.
Elonis v. United States (2015) is one of several cases used in the Newseum class You Can’t Say That?!, which explores exceptions (such as true threats, defamation and obscenity) to freedom of expression as guaranteed in the First Amendment. The class for grades 9 to university is free to visiting school groups.
Download a classroom-ready lesson plan of the Elonis case, two sets of discussion questions and the outcome. Have students, in small groups, talk through the questions and decide what they think the court ruling should be, and why. Because the Supreme Court did not rule on the First Amendment issues in the Elonis case, there’s no definitive answer on whether his posts were true threats.
In 2010, Anthony Elonis’s wife left him and his employer fired him. In response, Elonis began posting violent rap-style lyrics on Facebook about them. For example, Elonis wrote of his estranged wife: “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess.”
Elonis’s wife feared for her safety. When a state court issued her a Protection from Abuse order, Elonis asked on his Facebook wall if the order was “thick enough to stop a bullet.” He also included a link to the “Freedom of Speech” entry on Wikipedia. Elonis’s violent messages continued, including posts about shooting up an elementary school and wanting to kill an FBI agent who visited him.
On Dec. 8, 2010, Elonis was arrested and charged with transmitting communications containing a threat to injure another person. (“True threats” are not protected by the First Amendment.) Elonis argued that his rap lyrics were therapeutic, written to express his anger and depression, and included disclaimers of being fictitious. He also maintained that the posts did not indicate intent to carry out the threats; therefore, they should be protected by freedom of speech.
Think about this:
- What are some arguments for his speech being protected by the First Amendment?
- What are some arguments against it?
- If you were the judge, how would you rule on this case?
Questions to consider:
- How can you tell if speech posted on social media is meant to be taken seriously? At what point should the government intervene?
- Elonis posted his statements on Facebook. What if he had used a different medium?
- How are Elonis’s posts similar to or different from lyrics of professional rap artists?
- How would you balance protecting free expression with protecting people’s lives?
- How could a ruling in favor of Elonis negatively impact the lives of people who are harassed and threatened online?
What happened with the case?
- In October 2011, Elonis was convicted in district court and sentenced to 44 months in prison. He appeals.
- The 3rd Circuit Court of Appeals upheld the conviction in September 2013 based on the standard that a “reasonable person” would have understood the communications to be a threat. Elonis appeals.
- The Supreme Court overturned the conviction on June 1, 2015, and sent the case back to lower courts. It ruled that Elonis could not be convicted based solely on whether a reasonable person would regard his language as a threat. There must be proof of intent and that the defendant was aware of his wrongdoing. Because this wasn’t considered, the justices didn’t find it necessary to address any First Amendment issues.
- In 2016, the 3rd Circuit Court of Appeals, on remand, upheld Elonis’s conviction on making interstate threats via Facebook, agreeing with prosecutors that different jury instructions would not have changed the outcome of the case. The Supreme Court refused to hear Elonis’s appeal of this decision.