Decided: January 7, 2016 The Fourth Circuit affirmed the jury verdict convicting the defendant of three counts in violation of 18 U.S.C. § 875(b), and one count in violation of § 875(c). Additionally, the Fourth Circuit affirmed the district court’s 92-month term of imprisonment.

The question at the center of the case was whether the government had to prove that Elonis intended to threaten others, or whether it was enough that reasonable people would have felt threatened by his statements. Such intent might be required either by the interstate threats statute under which Elonis was convicted, 18 U.S.C. § 875(c), or the First Amendment.Yet the Supreme Court simply did not decide most of the issues central to the case. Chief Justice Roberts’ majority opinion stated explicitly: “it is not necessary to consider any First Amendment issues.”

In holding that the "reasonable person" test is not sufficient, and that the poster's state of mind must be considered as well, the Court arguably leaves an unclear standard for future courts to grapple with.Detailed discussion: On June 1, 2015, in a 7-2 opinion written by Chief Justice John C. Roberts, the U.S. Supreme Court handed down its opinion in Elonis v. United States. The issue for the Court to decide in Elonis was whether death and bodily harm threats posted by Anthony Douglas Elonis on his Facebook page that were directed at his estranged wife, police, co-workers and a neighborhood kindergarten class constituted a crime under 18 U.S.C. Sec. 875(c), which provides that any individual who "transmits in interstate or foreign commerce any communication containing any threat to … injure the person of another" is guilty of a felony and faces up to five years in prison. The Third Circuit affirmed the district court jury's opinion that said yes, based on the "reasonable person" test—i.e., whether a reasonable person would find the language threatening.

See also United States v. Wheeler, 776 F.3d 736 (10th Cir. 2015) (same).United States v. Stock, 728 F.3d 287 (3rd Cir. 2013)The defendant was charged with violating 18 U.S.C. §875. The Third Circuit held that “the word ‘threat’ in § 875(c) encompasses only communications expressing an intent to inflict injury in the present or future.”

Elonis v. United States, USSC No. 13-983, 2015 WL 2464051 (June 1, 2015), reversingUnited States v. Elonis, 730 F.3d 321 (3rd Cir. 2013); Scotusblog page (including links to briefs and commentary)This case involved a prosecution of Elonis for threats he made in postings on his Facebook page, and it was being widely watched for the First Amendment question it raised. But the Court sidestepped the constitutional question, and holds instead that 18 U.S.C. § 875(c), the federal statute he was prosecuted under, requires the government to prove some sort of mental state regarding the threatening nature of the communication.As pertinent to this case, § 875(c) makes it a felony to “transmit[] in interstate or foreign commerce any communication containing … any threat to injure the person of another.”

U.S. v. Heineman, 2014 WL 4548863 (9/15/14) (Ut.) (Published) - The 10th decides an issue in the defendant's favor that the Supreme Court in Elonis v. U.S., will resolve this term: whether 18 U.S.C. § 875(c) violates the First Amendment because it criminalizes making a threat without an intent that the recipient of a message feel threatened. The 10th justifies jumping the gun on the Supreme Court on the grounds that Mr. Heineman might have to wait until next June for the Elonis decision and in the meantime he would be suffering under the "not insignificant sanction" of probation and the restrictions of civil liberties attendant to a felony conviction.

United States v. Stock, 728 F.3d 287 (3rd Cir. 2013)The defendant was charged with violating 18 U.S.C. §875. The Third Circuit held that “the word ‘threat’ in § 875(c) encompasses only communications expressing an intent to inflict injury in the present or future.”

However, many who knew him saw his posts as threatening, and a sampling of Elonis’ “rap” will demonstrate why:***** If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder***** 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?***** Little Agent Lady stood so close Took all the strength I had not to turn th[is] [F.B.I. agent] ghost Pull my knife, flick my wrist, and slit her throat Leave her bleedin’ from her jugular in the arms of her partner***United States v. Elonis, No. 12-3798, slip op. at 4, 8-9 (3d Cir. 2013).Shortly after these and similar posts were made, Elonis was charged with five counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat … to injure the person of another.” On its face, this statute requires that a communication be transmitted and that the communication contain a threat.

Elonis raises both a statutory and a constitutional question. Elonis was convicted under 18 U.SC. § 875(c), which criminalizes transmitting “in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” The statutory question, therefore, is whether § 875 requires the government to prove the defendant’s subjective intent to threaten.

After the termination, he began writing Facebook posts involving his estranged wife, with vile and graphic descriptions of how he would have killed her “if I only knew then what I know now.” The FBI began monitoring Elonis’s Facebook postings after Dorney Park contacted the FBI claiming he had posted threats against it.Trial Result Elonis was convicted by a jury of multiple counts of violating 18 U.S.C. § 875(c) for posting threatening comments on his Facebook page. At trial, Elonis moved to dismiss the charges against him, claiming that pursuant to Virginia v. Black, 538 U.S. 343, 347–48 (2003), a subjective intent to threaten was required to meet the true threat exception to the First Amendment.