Divorce estimates vary in the U.S. It is safe to say that between 950,000 to 1.2 million occur in this country each year—an average of about 2500 a day. This means there are a lot of unhappy and angry people in this country willing to vent their frustration in any forum available. Enter social media. Facebook, with 665 million active daily users, has become the preferred forum for either a disgruntled divorce’ or divorcee to berate, taunt, and threaten the other. The question here is when does a Facebook threat become a crime?


Anthony Douglas Elonis was married to his wife for seven years. They had two children. The wife, with the two children, left Elonis in May 2010. Accounts from his fellow employees at an amusement park where he worked as an operations supervisor and communications technician said his behavior became erratic after the marital split. On several occasions his supervisors had to send him home because he was too upset to work. He then began to sexually harass female co-workers, undressing in front of one during a late-night work session. In October 2010, Elonis also began posting bizarre photos and comments on his Facebook page. One photo depicted a photo of a female co-worker with a knife to her throat at a company Halloween party. With the photo, Elonis commented, “ wish.” Elonis’ supervisor fired him after seeing the photo/comment.

Two days after his firing, Elonis began posting violent comments about the company where he worked and about his wife, Tara. The comments about his wife are too many to list here, but the following are representative samples: “I [should] have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder;” “there’s one way to love you but a thousand ways to kill you;” and “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” Elonis posted other comments as graphic and as threatening.


The FBI began to monitor Elonis’ Facebook postings. In December 2010, Elonis was arrested and charged with “transmitting in interstate commerce communications a threat to injure the person of another”—a federal offense under 18 U.S.C. § 875(c). A federal grand jury subsequently indicted him for making threatening communications. Elonis sought to have the indictment dismissed under a 2003 U.S. Supreme Court decision, Virginia v. Black, which held there had to be a subjective intent before a threat fell within the “true threat exception of the First Amendment.” In effect, Elonis argued that his statements were not threats but rather protected speech. The trial court denied the motion, saying the issue of whether or not the statements were threats or protected speech would have to be decided by the jury.  Apparently, the jury did buy it either…


Elonis’ case worked its way to the Third Circuit Court of Appeals. The appeals court upheld Elonis’ conviction on September 9, 2013.


Twelve years before the Supreme Court decided Virginia v. Black the Third Circuit decided United States v. Kosma which held that a statement is a “true threat” when a “reasonable speaker would foresee the statement would be interpreted as a threat.” The central issue before the appeals court in the Elonis case was whether this Kosma standard was overturned by Black’s “subjective intent to threaten” standard. The Third Circuit decided it was not.


The Kosma decision dealt with “threatening letters” sent to the President of the United States—a violation of 18 U.S.C. § 871. The district court applied the objective, reasonable person standard to find that the letters were “true threats” and not constitutionally political speech under the First Amendment. The Third Circuit agreed, finding that the “reasonable person” standard was appropriate in light of national security interests in protecting the President. The appeals court explicitly rejected the “subjective intent” notion that a person making a threat “intended at least to convey the impression that the threat was a serious one.” The court reasoned that any “subjective test” could potentially frustrate the purpose of § 871—to not only prevent actual threats against the President “but also the harmful consequences which flow from such threats.”

All threats have “harmful consequences” which is precisely why the Third Circuit in Kosma held that the same “knowingly and willfully” mens rea applicable to threats against the President must also apply to threats against individuals under § 875(c).


In 1969, the U.S. Supreme Court in Watts v. United States defined the “true threat”  exception to the First Amendment’s protected speech. That decision concerned statements made during a Vietnam War protest rally. A protestor told the crowd: “I am not going [to Vietnam]. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” The Supreme Court reversed the protestor’s conviction for making a threat against the president, finding his statement was “political hyperbole” rather than a true threat. The court based its decision on three precise findings: 1) the context was a political speech; 2) the statement was “expressly conditional;” and 3) “the reaction of the listeners” who “laughed after the statement was made.”


The true threat exception remained dormant in the high court until Virginia v. Black arrived. Black dealt with a Virginia statute that prohibited cross burnings with an “intent of intimidating.” The statute explicitly provided that any cross burning constituted “prima facie evidence of an intent to intimidate a person or group of persons.” The court said that while an intimidating cross burning itself could be considered a “true threat” under the First Amendment, the “prima facie evidence” provision of the Virginia statute violated due process because “it permitted a jury to convict whenever a defendant exercised his or her right not to put on a defense.” The court then defined a “true threat” as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”


Elonis argued that this definition of a true threat means “that the speaker must both intend to communicate and intend for the language to threaten the victim.” The appeals court, however, said Elonis read too much into the Black decision because the Court did not “have the occasions to make such a sweeping holding, because the challenged Virginia statute already required a subjective intent to intimidate.” The appeals court then added that it interpreted Black’s conclusion that “statements where the speaker means to communicate a serious expression of an intent to commit an unlawful violence” to mean that the speaker “must intend to make the communication.”


To support this interpretation, the Third Circuit called attention to the Supreme Court’s discussion in Black that “prohibition on true threats” is designed to “protect individuals from the fear of violence” and “from the disruption that fear engenders” as well as protecting individuals “from the possibility that the threatened violence will occur.” Against this backdrop, the appeals court concluded that “limiting the definition of true threats to only those statements where the speaker subjectively intended to threaten would fail to protect individuals from “the fear of violence” and the “disruption that fear engenders.”


Put simply, protected speech under the First Amendment does not include statements a reasonable person would construe to be threatening. So the balance falls in favor of what the targeted individual objectively considers to be a threat over what the speaker may have subjectively intended the threat to mean. This is the view held in most federal circuits; therefore, any statement posted on Facebook that any reasonable person would construe as “threatening” can be prosecuted.  This is especially so if the threat is violent, given the many recent examples of deaths following threats on social media.


Our advice to people with a violent disposition and intense grievance about any individual or group of individuals is to keep their statements about those groups off their Facebook page, lest they want an extended stay in a federal prison.