Violent Facebook Posts Could be a Felony | Worgul, Sarna & Ness, Criminal Defense Attorneys
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Violent Facebook Posts Could be a Felony

America is well-known for its constitutional protection of free speech. The First Amendment to the U.S. Constitution states “Congress shall make no law… abridging the freedom of speech….” However, your right to say and do as you please remains restricted. Multiple areas of speech are not protected by law including child pornography, obscenity, libel and slander, and true threats. Anthony Elonis, a Pennsylvania resident, became the center of a case that questioned the boundaries of free speech and the legal standard for determining when someone is guilty of making threats after he made violent Facebook posts. Elonis’ case went to the U.S. Supreme Court last year. In an opinion by Chief Justice John Roberts, the court determined that a standard of negligence was not enough to convict an individual of making threats under federal law. Instead, a defendant accused of making a threat must have the correct mental state for the crime.

If you have been charged with threatening a person or group under federal law, contact a Pittsburgh criminal lawyer from Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC at (412) 281-2146 as soon as possible.

Federal Law Against Making Threats

Under federal statute 18 U.S. Code §875(c), it is illegal to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” In this situation, “interstate” means to be carried between states or to cross state lines. Communications made on an online platform like Facebook or through e-mail and instant messaging are considered to have traversed state borders and therefore are interstate communications under federal law.

The question that arose in Elonis’ case was not whether his Facebook posts were interstate commerce – that was clear – but what was the standard the court should use to determine if he violated federal law. Did the threats have to be purposeful or could he be found guilty because of reckless behavior or words online?

Elonis v. U.S.

Anthony Elonis was arrested on Dec. 8, 2010, after posting violent rap lyrics on his Facebook page multiple times. The lyrics contained threatening and violent language toward his coworkers, ex-wife, a kindergarten class, local police and a specific FBI agent. After Elonis’ posts were perceived as threats, he was charged with five counts of violating 18 U.S. Code §875(c).

At trial, Elonis’s attorneys argued that the standard the court should use to determine guilt was whether Elonis had a subjective, actual intent to threaten other individuals. The court rejected this theory and the jury found Elonis guilty on four counts by using an objective standard. He was found innocent of threatening his co-workers and guilty of threatening the others. Elonis appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed the lower court’s ruling. The appellate court found that an objective standard of whether a reasonable person would perceive the posts as true threats was the appropriate legal test.

Elonis appealed to the U.S. Supreme Court arguing that the reasonable person standard was incorrect. The Supreme Court agreed with Elonis that the reasonable person standard was not enough and a stricter standard that looked at the defendant’s mental state was necessary. The case was reversed and remanded back to the appellate court in an 8-1 decision. While Chief Justice Roberts failed to explain the relevant standard in detail, he did quote a previous decision, stating “wrongdoing must be conscious to be criminal.”

Elonis Found Guilty a Second Time

Elonis’ case was sent back to the Third Circuit, which had to re-determine if he was guilty of violating the federal anti-threat law under a higher standard than the reasonable person test. The court was required to look at whether Elonis intended to threaten others and whether he knew his Facebook posts would be perceived by those mentioned as threats. In other words, was Elonis conscious of his wrongdoing or was he simply reckless in posting violent lyrics?

The appellate court found there was sufficient evidence that Elonis knew his posts were threatening and there was no need for a new trial or jury. His convictions were reinstated.

When Do Facebook Posts Become Illegal?

While the case of Elonis v. U.S. has been decided, there are still many questions surrounding free speech on the Internet, including when reckless, violent or allegedly threatening posts stop being protected speech and become a felony. You have the right to say things in anger and to make statements that involve violent content. However, it is clear that when violent Facebook posts or other online communications threaten specific individuals or groups and can be perceived as real, these posts can lead to federal felony charges.

Contact a Pittsburgh Criminal Lawyer

If you have been charged with making threats online or harassment, you need to work with an attorney who understands how Elonis v. U.S. impacts your case and how to build you the strongest defense possible in relation to a subjective standard of intent. Let the experienced legal team at Worgul, Sarna & Ness, Criminal Defense Attorneys, LLC aggressively defend your right to free speech in court.

Call today at ((412) 281-2146 or contact us online today.

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