By: Timothy P. Flynn

In law school back in the mid-1980s, I recall taking Constitutional Law with Professor Patrick Keenan [RIP] at the University of Detroit School of Law.  The class was one of the few that I looked forward to attending because of the dynamic subject matter and law professor.

One of the segments of the class was the First Amendment, and its free speech component.  The casebook profiled a series of cases in the chapter on the First Amendment that I had actually heard about in the media.

Yesterday, the SCOTUS granted certiorari in Elonis vs United States, a case destined for the constitutional law casebooks.  The roots of the case go back half a decade to a divorce court in Pennsylvania.

In 2009, Anthony Elonis, distraught over his contentious divorce proceedings, having lost his amusement park job, and perhaps considering himself "washed-up" at only 27, began to express his frustration on the Internet.  And when you are frustrated on the Internet, you probably turn to Facebook as the platform to express your views.  Elonis authored a series of posts on FB that mused about killing his ex-wife and others.  He also posted rap lyrics with such themes, insisting on FB, however, that he meant no harm.

In the end, convicted of a federal crime involving the electronic transmission of a threat across state lines, the man did nearly 4-years in the federal penitentiary.  His appeal of the conviction will now be decided by the highest court in the land.

Legal blogger Maureen Johnston of the SCOTUSblog framed the issue in her "Petiton of the Day" post:

Whether, consistent with the First Amendment and Virginia v Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

The Virginia v Black case held that a Virginia statute that outlawed cross-burning was overbroad to the extent that some cross-burning may not be performed in a threatening manner.  Really?  The SCOTUS decision to grant certiorari is even more puzzling considering their rejection last year of a petition involving a litigant that posted YouTube death threats to the judge in his child custody case.

Various lower courts have utilized different standards to assess the intent behind such threats.  Elonis asserts in his petition that the "reasonable person" standard is improper in the case of social media due to the high potential for misinterpretation by viewers that do not know the declarant.  Elonis argues that his subjective intent -merely to express his frustration, not to threaten- is the standard by which he should be judged relative to the charged federal offense.

Therefore, sometime next year, SCOTUS will decide the constitutionality of 18 USC 875(c).  We will track this case and report back.

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