Facebook threat or free speech case: The Supreme Court Elonis oral arguments.

Justice Ruth Bader Ginsburg’s Facebook Status: “I’m on the Bench Yo.”

Justice Ruth Bader Ginsburg’s Facebook Status: “I’m on the Bench Yo.”

Oral argument from the court.
Dec. 2 2014 1:39 PM

The Supreme Court Justices on Facebook

This week’s Elonis v. United States oral arguments as told through social media.

In which Justice Stephen Breyer posts a status update so long it breaks the Internet.

Photo illustration by Slate. Photos by Reuters and Thinkstock.

1969 United States Supreme Court shared a Facebook status:

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Petitioner's remark during political debate at small public gathering that, if inducted into Army (which he vowed would never occur) and made to carry a rifle, "the first man I want to get in my sights is L.B.J.," is not a “true threat” but is, instead crude political hyperbole which, in light of its context and conditional nature, did not constitute a knowing and willful threat against the President. (Watts v. United States)

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2003 United States Supreme Court shared a Facebook status:

The state, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate. Threats can be banned to protect people “from the fear of violence” and “from the disruption that fear engenders.” (Virginia v. Black)

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October 2010, Anthony Elonis, whose wife of seven years, Tara Elonis, had recently moved out with their two children, shared a Facebook status:


If I only knew then what I know now ... I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.

October 2010, Anthony Elonis commented on a thread posted by Tara Elonis’ sister about plans to take her niece and nephew—the Elonises’ children—shopping for Halloween costumes:

[Their 8-year-old son] “should dress up as a Matricide.” He added: “I don’t know what his costume would entail though. Maybe your head on a stick?”

Not longer after that, Elonis shared this Facebook post:


There’s one way to love ya but a thousand ways to kill ya. I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.

Nov. 7, 2010, after Tara obtained a court Protection From Abuse Order, Elonis shared this Facebook post:

I also found out that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room … . Yet even more illegal to show an illustrated diagram. [He then posted an accurate diagram.]

Nov. 15, 2010, Elonis shared this Facebook status:


Fold up your protection from abuse order and put it in your pocket. Is it thick enough to stop a bullet?

Nov. 16, 2010, Elonis shared this on his Facebook page:

That’s it, I’ve had about enough/ I’m checking out and making a name for myself/ Enough elementary schools in a ten mile radius/ to initiate the most heinous school shooting ever imagined/ and hell hath no fury like a crazy man in a kindergarten class/ the only question is … which one?

After an FBI agent read these threats and visited Elonis’ home for a visit, he shared this on his Facebook page:


“Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat.”

Elonis claims at trial that this language is all just therapeutic, an homage to Eminem. He never intended to threaten Tara Elonis.

At trial, Judge posts the following jury instructions on his Facebook page:









Following trial, the jury posts the following Facebook status:

Elonis is convicted of violating 18 U.S.C. § 875(c), which criminalizes the interstate transmission of “any communication containing … any threat to injure the person of another.” Elonis is sentenced to 44 months of prison plus three years probation.

September 2013, the Third Circuit Court of Appeals posts the following status on its Facebook page:

Elonis loses.

Spring 2014, U.S. Supreme Court posts a Facebook status:

  1. Does a conviction for threatening another person require proof of the speaker’s subjective intent to threaten?
  2. Does the federal statute criminalizing threats require proof of the speaker’s subjective intent to threaten

In other words, what matters here: Elonis’ subjective intent to threaten, or the reasonable listener’s objective reasonable belief that it was a true threat?

Dec. 1, 2014 10:00 a.m. Justice Ruth Bader Ginsburg, who underwent emergency heart surgery five days earlier, shared a Facebook status:

I’m on the bench yo.

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Dec. 1, 2014 10:55 a.m. attorney John P. Elwood, on behalf of Anthony Elonis, shares a Facebook status:

The First Amendment permits restrictions on the content of speech for a few well-defined, narrowly limited classes of communication … including what this Court has called “true threats.”

Justice Anthony Kennedy posts a comment:

I'm not sure the Court did either the law or the English language much of a good service when it said “true threat.” It could mean so many things. It could mean that you really intend to carry it out; you really intend to intimidate the person; or that no one could possibly believe it.

Justice Antonin Scalia posts a comment:

If you threatened somebody with violence and don't actually apply violence, it's still an assault, isn't it?

Justice Ginsburg posts a Facebook status:

How does one prove what's in somebody else's mind?

Chief Justice John Roberts posts a comment:

Yeah, you are going to find a lot of information on the cell phone that the guy is really angry at his ex-wife and—and, you know, would like to see her suffer. And he's going to put it online, and then you are going to say, well, that was just therapeutic, as you said in your brief.

Chief Justice John Roberts posts another comment:

All he has to do is say either, as I understood your brief, it's therapeutic, it's a good thing I could do this, or it's art.

John Elwood posts a comment:

If he is on notice that she's in fear, that is all we're asking for. That if he knows she is in fear, he doesn't have a right to continue on.

Justice Elena Kagan posts a status update:

I'm trying to figure out what exactly the level of intent you want is. The very highest level might be “I affirmatively want to place this person in fear; that's why I'm doing what I'm doing.” All right? There's a step down from that which is: “I don't want to do that; I'm just fulfilling my artistic fantasies,” whatever you want to call it; “but I know that I am going to place this person in fear.” Which intent do you want?”

John Elwood posts a comment:

The second.

Justice Kagan posts a comment:

Who is the person that we should be worried is going to be convicted under a recklessness standard?

John Elwood posts a comment:

Teenagers who are essentially shooting off their mouths or making sort of ill-timed, sarcastic comments which wind up getting them thrown in jail.

Justice Stephen Breyer posts a status update so long it breaks the Internet.

John Elwood attempts to post a comment.

Justice Breyer keeps posting, surpassing all social media character limits.

John Elwood attempts to post a comment.

Justice Breyer posts a comment:

I wouldn't have asked it if I didn't want your view, so what is your view?

 John Elwood posts a comment:

I'm trying hard to give it to you.

Gallery posts a comment:


Justice Samuel Alito posts a Facebook status:

I thought your answer to Justice Kagan a few minutes ago was that it is not necessary for the defendant to have the purpose of causing fear, but it's sufficient for the—for the defendant to have knowledge that it will cause fear.

Justice Alito posts another Facebook status:

OK? What's a jury to do with that under your theory? That you have to get into the mind of this obsessed, somewhat disturbed individual to figure out whether he really knew that this would cause a panic on the part of the school officials and parents who found out about this?

Justice Scalia posts a Facebook status:

It has to reasonably put somebody in fear. That's—that's all the government's insisting on.

John Elwood posts a comment:

Exactly, which is a very low standard.

Justice Scalia posts a comment:

It may be a low standard, but to my mind it doesn't eliminate a whole lot of valuable speech at all.

Deputy Solicitor General Michael Dreeben posts a Facebook status:

True threats, which may not be the best term in the world to describe them … cause fear and disruption to society and to the individuals who are targeted.

Justice Scalia posts a comment:

And the minimum penalty is what? A fine, right?

Justice Kennedy posts a comment:

But it is a felony.

Chief Justice John Roberts posts a Facebook status:

What is it? Is it a reasonable person and the examples that were given of the, you know, teenagers on the Internet, or is it a—reasonable teenager on the Internet.

Gallery posts a comment


Michael Dreeben posts a comment:

If there is such a thing.

Michael Dreeben posts another comment:

Sorry, Mr. Chief Justice.

Michael Dreeben posts a Facebook status:

We all know that if we're communicating among friends, particularly in a face-to-face context, we can say certain things that will be understood as sarcasm. But when we widen the audience and put a statement out in a situation where reasonable people are going to react to it by saying, this requires attention, this is a threat against an elementary school.

Michael Dreeben posts a Facebook status:

You just have to know what you're doing. … And the presumption is that when you speak English words and you're an English speaker, you're accountable for the consequences.

Chief Justice John Roberts posts a Facebook status:

(Quoting at length Eminem’s “ ’97 Bonnie & Clyde”) So how do you start out if you want to be a rap artist? Your first communication you can't say, “I'm an artist,” right?

Michael Dreeben posts a comment:

I think that you have perfect freedom to engage in rap artistry. What you don't have perfect freedom to do is to make statements that are like the ones in this case where, after the individual receives a protection from abuse order from a court which was based on Facebook posts that his wife took as threatening, he comes out with a post and says fold up that PFA and put it in your pocket, will it stop a bullet? He knows that his wife is reading these posts. He knows that his posts, despite the fact that they're in the guise of rap music, have instilled fear in her, and he goes out and he ramps up and escalates the threatening character of the statements.

Justice Scalia posts a Facebook status:

I don't agree with the proposition that in an intramarital [dispute] people make physical threats to the person of the other. I think that's rather unusual.

Michael Dreeben posts a Facebook status:

Here what you are talking about are criminal threats, statements that, taking away any private meanings that the individual attached to them, would leave observers of the view, “hey, this guy intends to carry out an act of violence against somebody.” That is not something that has First Amendment value.

Justice Scalia posts a comment:

This language is not worth a whole lot any way, right?

Michael Dreeben posts a smiley face.

Justice Alito posts a status update:

Well, this sounds like a roadmap for threatening a spouse and getting away with it. So you—you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an aspiring rap artist. And so then you are free from prosecution.

Michael Dreeben posts a smiley face.

Disclosure: Dahlia Lithwick serves on the boards of the Reporters Committee for the Freedom of the Press and the Jefferson Center for the Protection of Free Expression, both of which filed amicus briefs in this case.