Elonis v. United States – Watch What You Put on Social Media

A federal statute (18 U.S.C. Sec. 875(c)) makes it a crime to transmit in interstate commerce communications containing threats to injure someone.  Anthony Elonis, who was an active Facebook user, placed posts on his Facebook page that purportedly threatened patrons and employees of the park where he worked, his ex-wife, police officers, and school-age children.  His online activities were eventually brought to the attention of the FBI.  An agent created a Facebook account to just to monitor Elonis’ online activities.  The agent later visited his home, after which Elonis posted material on his page threatening her.  A grand jury charged Elonis with five counts of violating the above-referenced statute.  He went to trial and lost, was sentenced to a custodial term of almost four years with three years of supervised release, and the Third Circuit Court of Appeals affirmed.

At this point, some legal background is unfortunately necessary.  Every crime consists broadly of two parts – a physical act or acts and a particular mental state.  The act or acts have to be accomplished with the required mental state in order to constitute a crime.  Some criminal statutes will say specifically which mental state is required in order to make out that particular offense (e.g., purposely, knowingly, recklessly, intentionally).  But not every criminal statute defines the required mental state.  The statute that Elonis violated did not include a particular mental state, and the question before the Court was which mental state was required to support the conviction and whether or not Elonis’ jury was properly instructed on this issue.  The Court ultimately found that the jury instruction was defective, reversed the Third Circuit’s decision, and remanded the case for further proceedings.

The Court’s decision contains a terrific analysis of the interplay between mental states and potentially criminal conduct, and how to ascribe a particular mental state to a set of potentially criminal acts when the statute in question is silent on this issue.  All of that will certainly be of great interest to lawyers and judges but, given the prominent role social networking sites play in our daily lives, what does this case mean for the average user of these electronic media?

Elonis attempted to argue that he never actually intended to harm anyone, and that his writing was “therapeutic”.  Not surprisingly, he also made a First Amendment/Freedom of Speech argument.  He apparently got little, if any, traction out of the “I didn’t really mean it – it was only therapeutic” argument.  Further, given the way the Court decided the case, there was no need for it to reach any potential First Amendment issues, so those arguments were not addressed.

Social networking media can be disarming.  Someone sitting in their own home typing away on their PC can lose site of just how public Facebook and similar media can be.  As we all know but sometimes forget, posted material can be viewed by a very wide audience, and the person who put it out there may not even know exactly who sees it.  As noted above, an FBI agent established a Facebook account for the sole and express purpose of monitoring Elonis’ online activities, and Elonis never knew it.  It’s that easy.

Additionally, the average user should not think that they know the mechanics of a site like Facebook better than law enforcement.  The US Attorney’s offices, county prosecutor’s offices, the FBI, and local police all have teams that specialize in computer or cyber crime.  These people are well-trained, have considerable resources, and are very good at what they do.

Many of us have heard of college applicants who are denied admission to a particular school because someone at the institution viewed their Facebook page and located material they deemed objectionable.  What many people do not know is that depending on the offense, it is not at all unusual for copies of material a criminal defendant placed on social media to turn up in the discovery that the prosecuting authority produces to a defense attorney during the pre-trial phase of a case, all with an eye toward using this material to convict the defendant of the charged offense(s).

The obvious message of all this has yet to be accepted by everyone.  Social media is a great outlet for many things, and can be fun and entertaining.  But in deciding what to post publicly, a certain amount of discretion is highly advisable.

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