" The general rule is that a guilty mind is a necessary element in the
indictment and proof of every crime.”

Key Ruling: The law requires proof of the defendant's INTENT to threaten, not negligence or a reasonable listener test.

Elonis is one of the few cases involving the First Amendment as it applies to the Internet, and is thus worth a close examination.

Anthony Elonis had posted statements on his Facebook page that appeared to threaten his ex-wife and other people in his life. Prior to the postings, his wife and family had left him and he had lost his job at an amusement park. Shortly after this chain of events, Elonis posted several statements on his Facebook page that were interpreted as threats. Subsequently, he was reported to the FBI who arrested him with five counts of violating a federal anti-treat statute, 18 U.S.C. § 875(c). Specifically, he was charged with threatening his ex-wife, co-workers, a kindergarten class, the local police, and an FBI agent.

At his trial, Elonis asked the court to dismiss the charges, stating that his Facebook comments were not true threats. He argued that he was an aspiring rap artist and that his comments were merely a form of artistic expression and a therapeutic release to help him deal with the events in his life. In an attempt to underscore that his comments should not be taken seriously, he posted links to YouTube videos that he parodied, and noted that a popular rap artist often uses similar language in his lyrics. For several of his comments, he also posted a disclaimer stating: “This is not a threat.”

Despite the fact that his ex-wife, an FBI agent, and others viewing his comments might have perceived his statements as threats, Elonis argued that he could not be convicted of making a threat because he did not intend to threaten anyone with his postings. In other words, he claimed that he didn’t mean what he said in a literal sense. In legal terms, he said that he did not have a subjective intent to threaten anyone.

Anthony Elonis was convicted under 18 U. S. C. §875(c), which criminalizes the transmission of threats in interstate commerce, for posting threats to injure his coworkers, his wife, the police, a kindergarten class, and a Federal Bureau of Investigation agent on Facebook. The district court instructed the jury that a "true threat," which falls outside the scope of First Amendment speech protections, requires an objective intent to threaten. Elonis appealed and argued that "true threats" require a subjective intent to threaten. The U.S. Court of Appeals for the Third Circuit affirmed Elonis' conviction and held that a subjective intent standard would fail to protect individuals from the fear of violence which the "true threat" exception was created to prevent.

The Supreme Court, in a near unanimous 8-1 decision, held that the prosecution needed to show that Elonis intended for his Facebook posts to be threats, which required showing a subjective intent to harm. An objective reasonable person standard does not go far enough to separate innocent, accidental conduct from purposeful, wrongful acts. The Court held that an objective standard would risk punishing an innocent actor because the crucial element that makes this behavior criminal is the threat, not merely the posting.

Justice Samuel A. Alito, Jr. in the partly concurring, partly dissenting opinion that the prosecution only needed to prove negligence, but he argued that the majority opinion should have addressed what the proper instruction should be. By leaving out what the prosecution did need to show, attorneys and judges are left to guess whether knowledge or recklessness is the appropriate standard. Justice Alito also argued that recklessness should be the standard because a higher standard would effectively change the law rather than clarify it.

In an era in which progressive authoritarians want to lock up everyone who so much as had anything to do with January 6, 2021 and where any SMALL comment can be interpreted as a “microaggression” - we should be thankful for the Elonis ruling. This ensures that the Woke left cannot bring anyone to court who dares speak of fighting back, resisting or pushing back, without specific INTENT to threaten. I believe this is also better for our culture as we should have to freedom to express ourselves through writing, music, video, or any other median, without having to worry about how our expressions are perceived.