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Saturday, October 29, 2011

Are incendiary threats made on Facebook protected by First Amendment?

Jury Convicts on Four of Five Counts in Facebook Threat Case
The Legal Intelligencer
October 21, 2011
Amaris Elliot-Engel
A federal jury on Thursday found a Facebook user guilty of four counts of threatening his estranged wife, the Pennsylvania State Police and the Berks County Sheriff's Department, a kindergarten class, and an FBI agent and not guilty of threatening patrons and employees of Dorney Park, where he used to work.
A federal prosecutor and a defense attorney took the same social networking posts made by Anthony D. Elonis in the autumn of 2010 and asked a federal jury in the Eastern District of Pennsylvania to view them in very different ways.
To federal prosecutors, Elonis' posts on the site were the perfect way to make sure people in his life became fearful for their lives.
But to defense counsel, Elonis' Facebook posts were a way to vent his anger as his life came unhinged when his home life fell apart and he lost his job.
Elonis was indicted for allegedly making threats in October and November 2010 to the employees and patrons of his former workplace, Dorney Park and Wildwater Kingdom, his estranged wife, the Pennsylvania State Police and the Berks County Sheriff's Department, an FBI agent and a kindergarten class of elementary schoolchildren, according to court papers.
Prosecutor Sherri A. Stephan, an assistant U.S. attorney, said that it didn't matter if Elonis intended to carry out the threats or if he had the means to carry out the threats.
What matters is not what Elonis subjectively intended by his social-networking posts, but if an objective, reasonable person would understand that the posts could cause someone to feel threatened, to feel that Elonis' words carried the intent to inflict injury on them, Stephan said.
Stephan argued that Elonis' postings were the kind of statements "that a reasonable speaker, a reasonable [person making threats], could see the language would cause someone fear."
Elonis is claiming he has the right to put people in fear for their lives, Stephan said.
Benjamin B. Cooper, an assistant federal defender, said that Elonis' utterances were not true threats because they were exaggerated or said in a moment of anger. The legal definition of a true threat is a serious statement expressing an intent to inflict an injury, which is distinguishable from a statement made carelessly, made in exaggeration, made in a joking manner or made in an outburst of anger.
Elonis did not make threatening telephone calls, and he did not write letters with threats in them, Cooper said, reminding the jury that it must decide if Elonis became a criminal because of his Facebook postings.
Cooper said the jury should look at where Elonis was in his life: He had no family because he and his estranged wife, Tara Elonis, had separated, and she had moved out, taking their two children with them; he did not have a place to live; and he had lost his job.
Cooper also argued that Facebook is a venue in which people are "yelling at each other on the Facebook. People are swearing at each other on the Facebook," and Anthony Elonis was just participating in that world.
While Elonis' statements were crude and offensive, he was not a criminal for the things he said and the government did not prove beyond a reasonable doubt that Elonis uttered "true threats," Cooper said.
Elonis was charged with violating the federal statute criminalizing "any communication [in interstate or foreign commerce] containing any threat ... to injure the person of another."
U.S. District Court Judge Lawrence F. Stengel, who presided over the trial, ruled against a motion to dismiss the indictment. Cooper, arguing on behalf of Elonis, said in court papers, among other arguments, that Elonis' postings were placed in "rhyme settings" and are entitled to First Amendment protection, according to court papers. Stengel said the issues were a matter of fact, not a matter of law.
During Elonis' testimony, he said that "the government is trying to paint me as a monster," but he said he used violent imagery but did not have an intent to harm anyone.
"I'm using elements of my life fictitiously," Elonis said. "It's therapeutic for me." Elonis also said that he was interested in studying theater, and he had enjoyed playing roles in the past.
Beyond Facebook, Elonis said he had no direct communications with anyone who was named as victims in the government's indictment.
During her closing, Stephan said that Facebook wasn't a less serious medium for making threats but, in fact, the perfect venue to make threats because everyone Elonis targeted was looking at his Facebook account.
Stephan also struck an incredulous tone at Elonis' testimony that his postings were just artistic or emotional in nature: "Oh, it's just rap lyrics. Oh, it's just fictitious stories."
Among the many alleged threats made by Elonis, he wrote five days after he was fired from Dorney Park that "'Y'all sayin I had access to keys for the all the fuckin' gates. ... Y'all think it's too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I'm still the main attraction. Whoever thought the Halloween Haunt could be so fuckin' scary?'" according to court papers.
Elonis also posted — in this instance several days after a judge ordered a PFA in favor of his estranged wife: "'Fold up your PFA and put in your pocket. Is it thick enough to stop a bullet?'"
A day later, Elonis wrote that he might shoot up a kindergarten class: "'I'm checking out and making a name for myself. Enough elementary schools in 10-mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class,'" according to court papers.
After Elonis was visited by FBI agent Denise Stevens, he also posted that it "'took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin' from her jugular in the arms of her partner.'"
In another post that was not subject to a criminal charge, Elonis posted a picture from Dorney Park's haunted Halloween event in which he'd changed the photo so a knife was placed to the throat of a Dorney Park employee and labeled with the caption, "I wish," Stephan said.
Stephan argued that Elonis was seeking law enforcement authorities' attention in order to get arrested.
Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI. •

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