Last month, the U.S. Supreme Court ruled that the federal law that prohibits sending threats over the internet requires some level of intention by the sender. The ruling leaves some issues open but is significant for those who engage in hyperbole online.


The case of Elonis v. United States started when Anthony Elonis began posting messages on his Facebook account. Apparently frustrated by the breakup of his marriage, he adopted a pseudonym, “Tone Dougie,” and posted a series of what he called “rap lyrics”. The lyrics were graphically violent and mentioned his wife, co-workers, a kindergarten class, and the federal agents who eventually became involved in the case. Each post tended to include links or passages indicating that Elonis viewed his lyrics as “therapeutic” and that he was merely exercising his First Amendment right to free speech. Some posts were direct adaptations of television parodies on free speech issues.

After being tipped off by concerned co-workers, the FBI began to monitor Elonis’s public Facebook account. Investigating agents also visited his house and eventually Elonis was arrested and charged with violating a federal law that prohibits transmitting in interstate commerce “any communication containing any threat . . . to injure the person of another.” (18 U.S.C. § 875(c))

At trial, the necessary level of intent for criminal liability was at issue. The trial court judge told the jury that they should find Elonis guilty if they determined that a reasonable person, under the circumstances, would consider his Facebook messages to be threats. Elonis protested the jury instruction, arguing that in order to be found guilty, the jury needed to find that heintended his posts to be threats. The U.S. District Court denied Elonis’s request for a different jury instruction and Elonis was found guilty. On appeal, the U.S. Court of Appeals for the Third Circuit affirmed the U.S. District Court’s ruling.


In an 8-1 decision, the U.S. Supreme Court reversed the Court of Appeals, holding that 18 U.S.C. § 875(c) requires that a person know that his communication contains a threat. Revisiting many of the issues the Court seemed concerned about in oral argument, Justice Roberts, writing for the majority, found fault with both parties’ arguments. The government’s interpretation—that all that is required is that a reasonable person would consider the message a threat—was too broad for criminal liability. The Court noted that even if a statute does not explicitly lay out the required mental state, a certain level of intent or awareness is read into it. Without any requirement that Elonis knew or should have known that he was actually transmitting a threat, the Court characterized the government and lower courts’ standard as a “negligence standard.”

On the other hand, the Court concluded that the standard Elonis argued for was too stringent—that he needed to intend to threaten those he mentioned in his posts in order to be found guilty. Although the Court recognized that it will read a mens rea (that is, a mental state) into criminal statutes that do not mention one, a statute does not have to require intention. The Court made a comparison to a case called Morissette v. United States, where a man picked up shell casings from a government range. In order to be found guilty of theft, he needed to know that he was taking items that belonged to someone else but did not need to intend to steal them nor did he need to know that taking them was against the law.

Importantly, the Court in this case did not address whether a person can be found guilty if he recklessly transmits a threat. Under that standard, if the sender recognizes that what he is sending may be perceived as a threat but ignores the risk and sends it anyway, he would also be guilty. Justices Alito (concurring) and Thomas (dissenting) would have found that reckless is enough under the statute.


Elonis's posts contained graphic words and descriptions that many would find offensive. Nevertheless, the case is important for anyone engaged in online communication. The Court firmly determined that it takes more than a general consensus to find a person guilty of transmitting a threat online. The recklessness level of intent remains unresolved, however, and a person could face criminal liability for transmitting a threat, even if all he intended was hyperbole. It seemingly cannot be stated enough: use sense and caution no matter what online platform you are using.