Get access to the exclusive HR Resources you need to succeed in 2018!
Training, policies and tools to help HR prevent and respond to harassment claims.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Develop your HR competencies and knowledge in-person in 12 U.S. cities or virtually.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
There’s a dark side to social media, one that the Supreme Court addressed in a June 1, 2015, decision.
An employee fired for scaring other workers with a threatening Facebook post persuaded the Supreme Court to reverse his conviction on four counts of violating a federal statute (18 U.S.C. §875(c)) that prohibits threats to injure another.
Sending the case back to lower court, the high court ruled that instructions given to a jury erroneously stated that the government was not required to show the employee intended to communicate threats. Mere negligence with respect to the communication of threats wasn’t enough for a conviction, the high court determined.
Anthony Douglas Elonis was indicted on five counts for threatening posts on Facebook, including threats to patrons and employees of Dorney Park & Wildwater Kingdom, an amusement park in Allentown, Pa. Around Halloween of 2010, Elonis posted a photograph of himself and a co-worker at a “Halloween Haunt” event at the park where they worked. In the photo, Elonis was holding a toy knife against his co-worker’s neck. In the caption, Elonis wrote, “I wish.” The chief of park security was a Facebook friend of Elonis, saw the photograph and fired him.
Elonis posted a threatening entry on his Facebook page following his termination. He also was indicted for threats to his wife, to police officers, a kindergarten class and an FBI agent—all made through posts on Facebook.
Elonis had changed the user name on his Facebook page from his actual name to “Tone Dougie,” allegedly inspired by the names of some rap music artists. The graphic violent language and imagery subsequently displayed on his Facebook page were interspersed with disclaimers that the lyrics were fictitious with no intentional resemblance to real persons. He posted an explanation to another Facebook user that, “I’m doing this for me. My writing is therapeutic.”
At trial, Elonis testified that his posts emulated the rap lyrics of the well-known performer Eminem, some of which involved fantasies about killing his ex-wife. In Elonis’ view, he had posted “nothing … that hasn’t been said already.”
But the government presented as witnesses Elonis’ wife and co-workers, all of whom said they felt afraid and viewed Elonis’ posts as serious threats.
Elonis requested a jury instruction that the government must prove that he intended to communicate a true threat. The district court denied that request. It instead told the jury that, “A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.”
A jury convicted Elonis on four counts of the indictment, but not on his threats to amusement park patrons and other employees. He was sentenced to three years, eight months’ imprisonment, and three years’ supervised release.
Elonis appealed to the 3rd U.S. Circuit Court of Appeals, contending that the jury should have been required to find that he intended his posts to be threats. The appeals court disagreed, holding that all that was required for conviction was the intent to communicate words that the defendant understands and that a reasonable person would view as a threat.
In a 7-2 decision, the Supreme Court reversed, holding that the lower courts erroneously required only negligence in the jury instruction, not intent to threaten.
“The jury was instructed that the government need prove only that a reasonable person would regard Elonis’ communications as threats, and that was [an] error,” the high court stated in an opinion written by Chief Justice John Roberts Jr. “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding took deep and early root in American soil and Congress left it intact here.”
In sum, the court said, “Wrongdoing must be conscious to be criminal.” And it added that the mental state requirements of the criminal law at issue “is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” The Supreme Court sent the case back to the lower courts for further proceedings consistent with the opinion.
Alito’s Concurrence and Dissent
Justice Samuel Alito Jr. concurred in part and dissented in part, criticizing the majority opinion for declining to explain what type of intent was necessary.
“Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The court declines to say. Attorneys and judges are left to guess,” he said (emphasis in original).
“I would hold that a defendant may be convicted under §875 if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat,” he added. “Nothing in the court’s noncommittal opinion prevents lower courts from adopting that standard.”
And Alito said that to require no more than recklessness for the motive element would not violate the First Amendment.
“Lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person,” Alito said. “Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody or something similar.
“The facts of this case illustrate the point,” Alito wrote. “Imagine the effect on Elonis’ estranged wife when she read this: ‘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.’ … Or this: ‘There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” … Or this: ‘Fold up your [protection from abuse order] and put it in your pocket. Is it thick enough to stop a bullet?’ ”
Alito said he would have vacated the judgment below and sent the case back to the court of appeals to decide whether the conviction could be upheld under a recklessness standard.
Justice Clarence Thomas dissented. “Because the court of appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were ‘true threats’ unprotected by the First Amendment, I would affirm the judgment below,” Thomas wrote.
He added, “Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today’s decision rests.”
This case is Elonis v. United States, No. 13-983 (2015).
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Your session has expired. Please log in again before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
CA Resources at Your Fingertips
SHRM’s HR Vendor Directory contains over 3,200 companies