FaceBook, the U.S. Supreme Court & Free Speech About your Ex

“Anthony Douglas Elonis, under the pseudonym ‘Tone Dougie,’ used the social networking Web site Facebook to post self-styled rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement.” Elonis v. U.S.,  575 U.S. ___(June 1, 2015), quoting Slip Opinion. (**Caution, this post is longer than average and is incredible.**)

May 2010, Elonis’ wife of 7 years left him, taking their two children with her. Thereafter, Elonis began “listening to more violent music” and posting self-styled “rap” lyrics inspired by the music. Id.  Elonis changed the user name on his Facebook page from his actual name to a rap-style nom de plume, “Tone Dougie.” Id., at 249, 265.

The lyrics posted “included graphically violent language and imagery.”  He also interspersed  disclaimers that the lyrics were “fictitious,” with no intentional “resemblance to real persons.” Id., at 331, 329. Elonis described his writing as therapeutic.” Id., at 329.

“Elonis posted a photograph of himself and a co-worker at a Halloween event with Elonis  holding a toy knife against his co-worker’s neck. The caption Elonis wrote stated, “I wish.Id.

Elonis was fired for this posting and in response, posted a new entry: “Moles! Didn’t I tell y’all I had several? Y’all sayin’ I had access to keys for all the f***in’ gates. That I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I’m still the main attraction. Whoever thought the Halloween Haunt could be so f***in’ scary?App. 332.

Shortly after he was fired, Elonis posted an adaptation of a satirical sketch that he and his wife had watched together. Id. In the “sketch” he is threatening his wife: “Hi, I’m Tone Elonis. Did you know that it’s illegal for me to say I want to kill my wife? . . . It’s one of the only sentences that I’m not allowed to say. . . . Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife. . . . Um, but what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. . . . But not illegal to say with a mortar launcher. Because that’s its own sentence. . . . I also found out that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. . . . Yet even more illegal to show an illustrated diagram. [diagram of the house]. . . .” Id., at 333.  The details about the home were accurate. Id., at 154.

Based on the above Elonis’ wife secured a Order of Protection. His response? “Fold up your [protection-from-abuse order] and put it in your pocket Is it thick enough to stop a bullet? Try to enforce an Order that was improperly granted in the first place Me thinks the Judge needs an education on true threat jurisprudence And prison time’ll add zeros to my settlement . . . And if worse comes to worse I’ve got enough explosives to take care of the State Police and the Sheriff ’s Department.Id., at 334. At the bottom of this post was a link to the Wikipedia article on “Freedom of speech.” Ibid.

Later,  Elonis posted “That’s it, I’ve had about enough I’m checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a Kindergarten class The only question is . . . which one? Id., at 335.

Following this posting the FBI were notified and began monitoring Elonis and interviewed him. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another entry on his Facebook page, called “Little Agent Lady.” “You know your s***’s ridiculous when you have the FBI knockin’ at yo’ door Little Agent lady stood so close Took all the strength I had not to turn the b**** ghost Pull my knife, flick my wrist, and slit her throat Leave her bleedin’ from her jugular in the arms of her partner [laughter] So the next time you knock, you best be serving a warrant And bring yo’ SWAT and an explosives expert while you’re at it Cause little did y’all know, I was strapped wit’ a bomb Why do you think it took me so long to get dressed with no shoes on? I was jus’ waitin’ for y’all to handcuff me and pat me down Touch the detonator in my pocket and we’re all goin’ [BOOM!] Are all the pieces comin’ together? S***, I’m just a crazy sociopath that gets off playin’ you stupid f***s like a fiddle And if y’all didn’t hear, I’m gonna be famous Cause I’m just an aspiring rapper who likes the attention who happens to be under investigation for terrorism cause y’all think I’m ready to turn the Valley into Fallujah But I ain’t gonna tell you which bridge is gonna fall into which river or road And if you really believe this s*** I’ll have some bridge rubble to sell you tomorrow [BOOM!][BOOM!][BOOM!]Id., at 336.

Elonis was convicted of violating Section 875(c), stating, an individual who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” guilty of a felony . 18 U. S. C. §875(c). He was sentenced to three years, eight months’ imprisonment and three years’ supervised release. Elonis appealed.

The U.S. Supreme Court reversed and remanded, holding in part, “that Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of “awareness of some wrongdoing,” Staples, 511 U. S., at 606–607. This Court “ha[s] long been reluctant to infer that a negligence standard was intended in criminal statutes.” Rogers v. United States, 422 U. S. 35, 47 (Marshall, J., concurring). And the Government fails to show that the instructions in this case required more than a mental state of negligence. Hamling v. United States, 418 U. S. 87, distinguished. Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat” and the Government failed to prove that Elonis intended to threaten or that his words would be viewed as a threat. Id. Slip Opinion.


The Court’s rationale primarily dealt with the standard that the Government had to prove and whether Elonis had to have the intent that his words be intended to be a threat or that he knew they would be taken as a threat. The Court was NOT concerned with how the recipients of the statements took them, nor was the Court concerned with the impact that the statements had on the person who were subject to the statements. When I first heard about this case, I thought a man was convicted for bad-mouthing his Ex on FaceBook.  This went well beyond that.  The Court’s reasoning was on the intent of the person making the comments and the standard that must be applied for Criminal penalties to apply.  Sometimes the Courts, out of an abundance of caution, make nonsensical decisions. The case was not about Free Speech. The case was whether it could be proven that Elonis intended a threat or knew it would be taken as a threat.  I think he intended it to be taken as a threat.

Matthew Thompson is a Domestic Relations Attorney in Mississippi, admitted to practice in the U.S. Supreme Court, and regardless of the Elonis decision advises that you not bad-mouth your ex on FaceBook whether you mean it or not.

Follow the blog: BowTieLawyer Visit the website: Thompson Law Firm

You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or  Matthew@bowtielawyer.ms.


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