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United States of America v. Anthony Douglas Elonis


October 20, 2011


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.

I. Background

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.

II. Discussion

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 statement as a serious expression of an intention to inflict bodily harm.

Id. at 559. In considering whether a communication is a true threat all circuits seem to agree the jury should "consider context, including the effect of an allegedly threatening statement on the listener." See Planned Parenthood v. Am. Coalition of Life Activists, 290 F.3d 1058, 1074-75 n.7 (9th Cir. 2002); see also United States v. Kosma, 951 F.2d at 553-54 (alleged threats must be analyzed in context).

The defendant argues the communications alleged to be threats in the indictment do not constitute "true threats," and are, in fact, protected speech under the First Amendment. Mr. Elonis contends that the Government did not show he had any subjective intent that the posts be understood as threats, that any third parties felt threatened by the posts, or that the posts provoked any third party listeners/readers. (Doc. #24 at 12.) Mr. Elonis states these posts are simply crude, spontaneous and emotional language expressing frustration, and that they were not sufficiently definite to constitute a true threat. Id. at 7. The Government contends Elonis' group of Facebook "friends" included those persons whom he unambiguously threatened, including his wife and former co-workers at Dorney Park. Further, the Government argues that a reasonable person could see Mr. Elonis' posts as threats and, in fact, did.*fn6

A reasonable jury could find Mr. Elonis' posts constituted true threats by applying the objective speaker test. For example, on November 15, 2010 Mr. Elonis posted:

And if worse comes to worse

I've got enough explosives to take care of the State Police and the Sheriff's Department. The next day, on November 16, 2010 Mr. Elonis posted:

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?

Additionally, Mr. Elonis' wife was granted a PFA Order due to the threatening posts targeting her, which, even after the PFA was granted, Mr. Elonis continued to make.*fn7

Therefore, whether the posts by defendant constitute threats within the proscription of 18 U.S.C. § 875(c) may not be decided as a matter of law at this stage of this case. *fn8 The defendant's intentions when posting the content, the reasonable expectation as to the effect of the posts on a recipient, and the circumstances surrounding the posts present issues of fact.

B. 18 U.S.C. § 875(c) is Constitutional

Mr. Elonis argues that 18 U.S.C. § 875(c) is overly broad and unconstitutionally vague. Specifically he contends: (1) § 875(c) covers a substantial amount of protected speech and (2) the statute fails to provide a person with a reasonable opportunity to know what speech is disallowed and what is not.*fn9 Courts review these contentions applying a presumption of constitutionality to the challenged statute. Marshall v. Lauriault, 372 F.3d 175, 185 (3d Cir. 2004) (citing I.N.S. v. Chadha, 462 U.S. 919, 944 (1983)).

i.The Statute is Not Overly Broad

The defendant asserts that § 875(c) is overly broad since, absent a requirement of subjective intent, it permits conviction for a substantial amount of protected speech. To support his claim, the defendant points to a variety of communications that he contends are protected under the First Amendment, but would subject the speaker to criminal prosecution under the statute, including the following:

- President Bush's comments in a national address in March 2003 that the United States would commence bombing Iraq within 48 hours if Saddam Hussein did not surrender and leave the country. - President Obama's comments to the members of a musical group that his daughters were huge fans, "but, boys, don't be getting any ideas. I have two words for you: predator drones." - Samuel L. Jackson's role in the 1994 film Pulp Fiction where he plays a hitman who recites a passage from the Book of Ezekiel 25:17 prior to murdering each of his victims.

The defendant contends that by defining "true threats" as "where the speaker means to communicate a serious expression of intent to commit an unlawful act of violence," the Supreme Court held that a requirement of subjective intent to threaten is a precondition to a finding of constitutionality. However, many courts have held that this language of the Supreme Court is more appropriately interpreted as stating that there must be an intentional, i.e., knowing, communication of what is an objectively serious threat. Therefore, proof of subjective intent to actually do harm is not required. So long as the defendant knowingly made the statement, whether it was a threat is determined by an objective reasonable speaker standard. See United States v. Kosma, 951 F.2d at 553-54 (3d Cir. 1991). Moreover, an objective interpretation does not sweep too broadly, and would not incorporate the "protected speech" envisioned in the defendant's motion because the statute criminalizes only "true threats." See United States v. Francis, 164 F.3d 120, 122-23 (2d Cir. 1999) (finding the statute constitutional, as it criminalizes only true threats even though there is no requirement that the Government prove that the defendant intended to carry out his threats).

ii.The Statute is Not Impermissibly Vague

The defendant also contends that the statute is impermissibly vague. The essence of this challenge is that § 875(c) does not define what is meant by a "threat;" and, that it therefore "fails to provide a person with a reasonable opportunity to know what speech is disallowed and what is not."*fn10 (Doc. #24 at 28).

To survive vagueness review, a statute must (1) define the offense with sufficient definiteness that a person of ordinary intelligence can understand what conduct is prohibited; and (2) establish standards to permit police to enforce the law in a non-arbitrary, nondiscriminatory manner. United States v. Mariano, 2006 U.S. Dist. LEXIS 7497 at *9 (E.D. Pa. Feb. 27, 2006) (citing City of Chicago v. Morales, 527 U.S. 41, 56 (1999)).

The defendant's argument is without merit. The examples of "convictions upheld under 18 U.S.C. § 875(c) are innumerable." See United States v. Vaksman, 2009 U.S. Dist. LEXIS 119287 at *11 (E.D. Wash. Dec. 4, 2009). Defendant's claim that the statute does not define "threat" and the case law provides the only interpretations of "threat" is misleading. Courts may legitimately look to interpretations in case law when determining whether a statute is unconstitutionally vague. See Grayned v. City of Rockford, 408 U.S. 104, 109-10 (1972).

I find that § 875(c) is not unconstitutional either due to overbreadth or vagueness. The term, "threat to injure the person of another" is commonly understood. Every court to consider the issue has so held.*fn11 By construing the statute to apply only to "true threats," the Courts have limited its application so that it captures only speech that is unprotected under the First Amendment.

IV. Conclusion

For the reasons set forth in this memorandum defendant's Motion to Dismiss the Indictment (Doc. #24) is denied.

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