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Supreme Court tosses conviction of Pa. man in Facebook threat case

| Monday, June 1, 2015, 1:22 p.m.

The Supreme Court on Monday threw out the conviction of a Pennsylvania man prosecuted for making threats on Facebook to kill his estranged wife, shoot up a kindergarten class and attack an FBI agent, but dodged the artistic expression issues that made the case intriguing to First Amendment advocates.

The ruling, in which the high court sent the case back to the lower court without clarifying exactly what the standard of proof should be in such cases, was a narrow victory for civil liberties groups that had urged the court to make it tougher to convict people who make crude comments on social media that might be viewed as threatening.

Yet the high court declined to lay out broad constitutional protections for such comments. “It is not necessary to consider any First Amendment issues,” Chief Justice John Roberts wrote.

Some said it was a setback for domestic violence victim advocates. Experts on both sides agreed the ruling makes prosecuting online threats more difficult, but most thought a new trial in the case would probably result in a conviction.

While he's looking forward to teaching the ruling in class, “Its real-life impact is almost nothing,” Duquesne University law professor Wes Oliver said.

John Burkoff, a University of Pittsburgh law professor, agreed the ruling makes good classroom fodder but has limited impact.

“It's a technical decision. It is not a constitutional decision,” he said. “It does make it a little harder to prosecute people who say apparently threatening things on social media.”

A federal jury in Allentown convicted Anthony Douglas Elonis, 31, of Freemansburg, Northhampton County, of making threats in interstate commerce in October 2011. He was sentenced to and served three years and eight months in prison and is serving three years of probation, according to court documents.

Elonis claimed he was just kidding when he posted a series of graphically violent rap lyrics on Facebook in 2010 about killing his estranged wife, shooting up a kindergarten class and attacking an FBI agent who investigated the earlier postings.

He asked the federal judge presiding at his trial to instruct jurors that the government had to prove he intended to threaten his wife and others. The judge denied that request and told jurors they only had to find that a “reasonable person” would see his comments as threats.

Eight of the nine Supreme Court Justices voted to overturn his conviction and remand the case to the lower court. They declined to rule on what standard of criminal intent the government would have to meet.

Justice Clarence Thomas was the lone dissenter, stating he believed the government proved Elonis knew others would see his comments as threats and that the conviction should have been upheld.

Justice Samuel Alito agreed with the majority in overturning the convictions but dissented on the second part of the ruling. He said the government should have to prove only that Elonis knew others could have found his comments threatening, not that he intended to make threats.

While Thomas is probably right about what the government proved in the case, the majority couldn't uphold the conviction without eroding the jury's role in criminal prosecutions, Oliver said.

Since the ruling is based on criminal law principles instead of the First Amendment, Congress could rewrite the federal statute and spell out what level of criminal intent the government has to prove, Burkoff said.

“They could fix it in 24 seconds, except that they're Congress and they can't,” he said.

Prosecutors are considering their options, “including the likely retrial of the defendant,” said First Assistant U.S. Attorney Louis Lappen.

Since Elonis has served his sentence, retrying the case would be a questionable use of government resources since its only impact would be to keep a felony conviction on his record, several experts said.

More likely is that prosecutors will re-evaluate any pending threat cases to decide whether they can at least show the person knew there was a risk that others would find his or her comments threatening, said Robert Richards, founding director of the Pennsylvania Center for the First Amendment at Penn State.

“It's a victory for social media,” Richards said. “It's certainly not a license for people to go online and say whatever they want.”

The Associated Press contributed to this report. Brian Bowling is a staff writer for Trib Total Media. Contact him at 412-325-4301 at bbowling@tribweb.com.

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