UVA Law Clinic Headed to Supreme Court Again with Elonis, Facebook Threat Case

Ed Wayland

Students in the UVA Law Supreme Court Litigation Clinic prepared and filed the petition in the Eloniscase, which the court agreed today to hear in the fall.

June 16, 2014

The Supreme Court Litigation Clinic at the University of Virginia School of Law will argue a case before the Supreme Court that may clear up long-standing questions about when a threat is criminal and not protected by the First Amendment.

Update: Oral arguments for Elonis are scheduled for Dec. 1. More

In Elonis v. United States, the clinic is representing Pennsylvania man Anthony Elonis, who was convicted in 2011 of several charges stemming from statements he made on Facebook about his estranged wife and others. At issue in the case, which the court today agreed to hear, is whether the comments constituted a "true threat." The case, the clinic's eleventh before the Supreme Court since the clinic started in 2006, will be argued in the fall.

"This case is particularly relevant in an age when we increasingly communicate electronically with people we have never met in person," said clinic instructor John Elwood. "People who know me well may know when I'm kidding, but people who are just reading something on Twitter or Facebook may not know that this is something that [is meant] facetiously."

Elwood, a partner in the appellate practice at Vinson & Elkins, said the last time the Supreme Court addressed the "true threat" question 11 years ago left some questions open. That case, Virginia v. Black, involved whether a Virginia statute making it a felony to burn crosses violated the First Amendment. The court ruled that it was a violation of free speech for the state to presume that all cross burnings reflect an intent to threaten.

"They certainly suggested that you need to have a subjective intent to threaten somebody, because that's what separates protected speech from unprotected speech," he said. "In our system we don't have strict liability for speech."

But since then, courts have gone in different directions.

"The Ninth Circuit and several state courts have all held that you need to have a subjective intent [to threaten] — but most courts have held that you don't need to have such a subjective intent — it's enough that a reasonable person would feel threatened by what you say," Elwood said. "It's been an area that really has been a mess for over a decade and I think the [court] felt that it finally needed to be cleared up."

Elonis was 27 when, in the span of a few weeks, his wife of seven years left him and he lost his job.

"He put up some posts on Facebook, although they were typically posted with all sorts of disclaimers all over them — that they were basically written for cathartic purposes and weren't meant to be taken seriously," Elwood said.

In his posts, Elonis included links to the Wikipedia "Free Speech" page and made references to other First Amendment cases. In the meantime, his wife obtained a "protection from abuse" order against him.

"[Elonis] got an unhappy visit from the FBI and of course he put out a post on that one too. The FBI was not amused, and they charged him with making an interstate threat," Elwood said.

Elonis also parodied a sketch by the comedy troupe The Whitest Kids U' Know about how it's illegal to threaten the president, recast against his wife.

"There's been a whole spate of cases where people are getting in trouble because so many people are posting online now, and the thing about posting online is that you don't know how people are going to react to it," Elwood said.

"If a jury finds that the reader reasonably could have felt threatened, you may find yourself facing a felony when you merely meant it in jest," he said. "This is an important case for an age where impersonal, electronic communication is increasingly how people interact."

Elonis was convicted of five of six charges made, and served 44 months before his release in February. Currently, he is on supervised release for three years and is still under a criminal sentence.

Elwood said though many similar cases have sought the Supreme Court's attention, Elonis stood out among the recent cases seeking cert for similar reasons because it had no vehicle problems, such as when the appellant has already finished his criminal sentence.

The Supreme Court is "very careful about making sure that they'll actually be able to address the question they granted cert on," he said.

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