After his wife left him, Anthony Elonis changed his Facebook name to “Tone Dougie” and began posting self-styled rap lyrics containing violent language and imagery about his friends and family. Elonis always posted disclaimers stating that the lyrics were fictitious, an art form, and even therapeutic. He often made reference to his First Amendment rights. Despite the disclaimers, many who knew him found his posts threatening.

In one instance, Elonis posted a picture of himself holding a toy knife against a co-worker’s neck, along with the caption “I wish.” His boss fired him and alerted the FBI< who started monitoring Elonis’s Facebook activity.

Later, Elonis posted:

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 to 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 with a mortar launcher. 

Accompanying the post was a diagram of his ex-wife’s house with instructions on how to make the best getaway. Because of this post, a judge granted Elonis’s ex=wife a restraining order against him.

Unhappy about the order, Elonis posted he would make “a name for himself” by initiating “the most heinous school shooting ever imagined.” This post prompted two FBI agents to visit Elonis’s home. When they left, Elonis immediately took to Facebook, writing that he would “leave [the female FBI agent] bleedin’ from her jugular,” among other violent acts.

Elonis was arrested for the federal crime of transmitting “any communication containing any threat…to injure the person of another” across state lines. The trial judge instructed the jury that the first Amendment does not protect a “true threat.” The test of a true threat, according to the judge, was whether a reasonable person would perceive the statement as threatening. Elonis appealed, arguing that the test for a true threat should include the speaker’s subjective intent to threaten, not the listener’s perception. The appeals court affirmed Elonis’ conviction, which was appealed to [the] Supreme Court

Questions:

1. Should a threat be defined by the speaker’s intent or by the listener’s reasonable perception?

2. What is the difference between the legal standard for guilt based on the complainant’s reasonable perception of danger, and the standard which requires mens rea, or some other description of conscious criminal action? 

3. Do you think Elonis’s Facebook posts were threatening?