The opinion of the court was delivered by: Stengel, J.
The defendant is charged with making threatening communications for comments posted to the social networking website, Facebook. It is a federal crime to transmit in interstate commerce a communication containing a threat to injure another person. Mr. Elonis' motion to dismiss the indictment raises constitutional challenges to the criminal charges and to the statute. For the reasons set forth below, I will deny the defendant's motion to dismiss.
Mr. Elonis was employed as a supervisor in the operations department at Dorney Park and Wildwater Kingdom, an amusement park in Allentown, Pennsylvania. He was fired on October 17, 2010. After his termination, Mr. Elonis began posting statements on his Facebook page suggesting he would do damage to Dorney Park, that he had enough explosives to harm the Pennsylvania State Police and the Berks County Sheriff's Department, and do violence to a kindergarten class. Additionally, Mr. Elonis posted threatening comments concerning his wife.*fn1 Mr. Elonis was arrested on December 8, 2010, and charged in a criminal complaint with transmitting in interstate commerce a communication containing a threat to injure the person of another in violation of 18 U.S.C. § 875(c).*fn2
On January 7, 2011, the grand jury returned a five-count indictment charging Mr. Elonis with making threatening communications (1) to patrons and employees of Dorney Park and Wildwater Kingdom, (2) to his wife, (3) to employees of the Pennsylvania State Police and Berks County Sheriff's Department, (4) to a kindergarten class, and (5) to an FBI agent.
An indictment must allege sufficient facts to establish the legal requirements of the crimes charged. See United States v. Cefaratti, 221 F.3d 502, 507 (3d Cir. 2000). "In order to be valid, an indictment must allege that the defendant performed acts which, if proven, constituted a violation of the law that he or she is charged with violating." United States v. Hedaithy, 392 F.3d 580, 589 (3d Cir. 2004) (citing United States v. Zauber, 857 F.2d 137, 144 (3d Cir. 1988)). Dismissal of an indictment is an "extreme remedy," reserved only for the most egregious abuses of the criminal process. United States v. Fisher, 692 F. Supp. 495, 501 (E.D. Pa. 1988) (quoting United States v. Birdman, 602 F.2d 547, 559 (3d Cir. 1979)).
Mr. Elonis contends that his Facebook postings are protected speech under the First Amendment and, therefore, cannot be criminal. I recognize that "the bedrock principle underlying the First Amendment . . . is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). It is also well-established that there are certain categories of speech that are not protected under the First Amendment. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). One of these categories is speech which is a "true threat." See Watts v. United States, 394 U.S. 705, 708 (1969).
A. Whether Mr. Elonis' Facebook Postings Communicate True Threats is a Question of Fact
In United States v. Kosma, 951 F.2d 549, 558 (3d Cir. 1991) the Third Circuit interpreted 18 U.S.C. § 871, a statute regarding threats on the President and containing very similar language to 18 U.S.C. § 875(c). The Third Circuit held that the "intent" required with respect to threatening speech means the government must prove the defendant intentionally made the communication, not that he intended to make a threat. This intent requirement is limited to the defendant's state of mind when he made the statement or the communications. In this case, the "intent" element is satisfied if the government proves the defendant intended to make the posts on Facebook.
If the government proves the defendant intended to make the statement, i.e., the Facebook posting in question, the inquiry then becomes whether the statement is a true threat. If it is not a true threat, the statement is protected by the First Amendment and there can be no criminal liability. If the statement contains a true threat, it is not protected by the First Amendment and the defendant could be found guilty of communicating a threat under § 875.
Whether the Facebook postings contain true threats is a question of fact for the jury and cannot be decided by the court on a motion to dismiss.*fn3 What standard the jury should apply to decide if the postings contain a true threat is an interesting question. *fn4
There seems to be general agreement that the court should instruct the jury on an objective test. Some courts apply an objective test that focuses on the reaction of the "reasonable recipient" to the statements. Others focus on the "reasonable speaker" and what he or she might anticipate would be the reaction to the communications.*fn5 The Third Circuit in Kosma clearly adopted the "reasonable speaker" test:
The objective, reasonable person test requires that the defendant intentionally make a statement, written or oral, 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 ...