Anthony Elonis was convicted of violating 18 U.S.C. §875(c), which prohibits transmitting in interstate commerce communications containing a threat to injure a person, based on numerous violent Facebook posts. Elonis challenged his indictment and ultimate conviction for making threats, arguing the statements were not threats, but protected speech under the First Amendment. The Third Circuit explored the true threats exception to the First Amendment in United States v. Elonis, -- F.3d --, 2013 WL 5273118 (3d Cir. September 19, 2013).First, Elonis challenged the jury instruction which informed jurors that a statement was threatening if a reasonable person would have believed the statements were serious. He argued that Virginia v. Black, 538 U.S. 343 (2003) required a subjective intent to threaten under the true threat exception to the First Amendment. Specifically, he argued that Black requires the speaker to both intend to communicate a threat and for the statement to threaten the victim. The Third Circuit ruled that the holding in Black was not that sweeping, and that limiting the definition of true threats, to only cover threats that a speaker subjectively intended to be threatening, would fail to protect individuals from the fear of violence and the disruption that fear causes, while protecting speech that the average person would find threatening. Accordingly, the appellate court found that true threats exception does not require a subjective intent to threaten, and Black did not overturn the objective test used to access threatening language in most federal courts.
Elonis next challenged the sufficiency of his indictment because it did not specifically include the allegedly threatening statements. The Third Circuit found the indictment sufficient because it notified Elonis of the elements of the offense, the nature of the threat, the subject of the threat and the time of the violation.
Additionally, Elonis challenged the sufficiency of the evidence for his conviction on two specific counts of the indictment. One count involved a conditional threat. The circuit court held that there is no rule that a conditional statement is not a true threat, if the words and the context of the statement show a serious expression of intent to cause harm. For the second challenge, Elonis argued that the threat suggested past conduct, not a future intent to harm. Although the statement referenced a past bomb, it also threatened the use of explosives against law enforcement “the next time” they knocked on his door. A reasonable jury could find that the expressed intent to use explosives in the future constituted a true threat.
Finally, the Third Circuit found no error in the district court’s instruction to the jury that if it found the communication traveled over the internet, then it necessarily traveled in interstate commerce.