Posting Facebook Threats Criminal Violation Requires Awareness of Wrongdoing

Anthony Douglas Elonis tested the limits of what content he could lawfully post on Facebook.  He was convicted for threatening patrons and employees of the amusement park where he was formerly employed, his estranged wife, police officers, a kindergarten class and an FBI agent through his violent music inspired Facebook posts.  18 U.S.C. §875(c) makes it a federal crime to transmit communications containing threats to injure another person through interstate commerce.  A Facebook post is a communication made through interstate commerce, an assumption that was not at issue in this case.

The district court allowed a jury instruction 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.

The Third Circuit Court of Appeals agreed with the jury instruction and upheld the conviction.

What, if any, mental state must a defendant have to be convicted for making threats under 875(c)?  That was the question before the U.S. Supreme Court.

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