U.Va. Law Supreme Court Litigation Clinic Wins Facebook Threat Case

June 02, 2015

The Supreme Court handed another victory to the Supreme Court Litigation Clinic at the University of Virginia School of Law on Monday. In Elonis v. United States, justices sided 7-2 with the clinic’s client, Pennsylvania man Anthony Elonis, who was appealing his conviction for making threats against his estranged wife and others on Facebook.

Elonis argued his comments, styled as rap lyrics, were made in jest to blow off steam.

Without addressing the First Amendment issue in the case, Chief Justice John Roberts said in the majority opinion it was not enough for prosecutors to show that Elonis’ comments would make a reasonable person feel threatened.

Clinic director and U.Va. Law professor Daniel Ortiz said the decision throws out Elonis’ conviction, though it doesn’t clear up a murky area of free speech law.

“It’s a very strong win and a clear opinion that leaves to another day a few big questions – if negligence isn’t enough, what’s the correct level of mens rea [level of intent] required and what role the First Amendment might play in the issue – that the lower courts will consider over the next few years,” he said.

The clinic, which has argued 12 cases in Washington since its inception in 2006, offers students the chance to handle actual cases, from the seeking of Supreme Court review to briefing on the merits. In another case before the court this term, the clinic garnered a unanimous decision for its client on May 18 in Henderson v. United States.

At issue in Elonis was whether the comments constituted a “true threat.” Clinic instructor John Elwood, a partner at law firm Vinson & Elkins in Washington, D.C., argued on behalf of Elonis and the clinic on Dec. 1.

“This case is particularly relevant in an age when we increasingly communicate electronically with people we have never met in person,” Elwood said. “People who know me well may know when I’m kidding, but people who are just reading something on Twitter or Facebook may not know that this is something that [is meant] facetiously.”

Elonis was 27 when, in the span of a few weeks, his wife of seven years left him and he lost his job.

“He put up some posts on Facebook, although they were typically posted with all sorts of disclaimers all over them – that they were basically written for cathartic purposes and weren’t meant to be taken seriously,” Elwood said.

In his posts, Elonis included links to the Wikipedia “Freedom of speech” page and made references to other First Amendment cases. In the meantime, his wife obtained a “protection from abuse” order against him.

“[Elonis] got an unhappy visit from the FBI and of course he put out a post on that one, too. The FBI was not amused, and they charged him with making an interstate threat,” Elwood said.

Elonis was convicted of five of six charges, and served 44 months before his release in February 2014. After his release, he was still subject to supervised release for three years as a felon.

“This is an important case for an age where impersonal, electronic communication is increasingly how people interact,” Elwood said.

Genevieve Hoffman, a clinic participant who worked on the case before she graduated in May, said she was not surprised by the decision.

“It’s consistent with the court’s precedents dealing with mens rea standards in federal statutes – which I think definitely worked in our favor,” she said. “It was great to see that our work paid off – many of those precedents that we had researched and discussed showed up in the opinion.”

Lide Paterno, another 2015 graduate, also helped with the case.

“I loved working on this case because it brought together so many areas of law I had studied throughout my time at U.Va., from the basics of criminal law to more advanced First Amendment and statutory interpretation issues,” Paterno said.

“The opinion in our client’s favor is a testament to the creativity and diligence of the great team that worked on the case, including our instructors, the members of the clinic the year before we joined, and attorneys at John’s firm,” Paterno added. “I felt very fortunate to see John in action at the argument in December. He was remarkably poised under pressure and even managed to weave in a few jokes with the justices, illustrating not only his command of the law, but also his impressive command of rap music and social media.”

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Mary Wood

Chief Communications Officer University of Virginia School of Law