A Pennsylvania man who was indicted for making violent threats on Facebook is now challenging the constitutionality of the federal cyberstalking statute, arguing that the law criminalizes “pure speech” and is vague and overbroad.
In the indictment, Anthony Elonis, 27, is charged with making a series of threats in his Facebook postings after he was fired from his job at a theme park.
Prosecutors say Elonis made threats to injure his former co-workers at Dorney Park and Wildwater Kingdom, as well as his ex-wife, an FBI agent and employees of the Pennsylvania State Police and the Berks County Sheriff’s Office.
But Elonis’ lawyer argues that the postings cannot be considered true threats because they were read only by Elonis’ Facebook “friends,” were often in the form of verse and lacked any specifics about dates, times or places for his alleged plans of committing violent acts.
Assistant U.S. Attorney Sherri A. Stephan is expected to file a response to the motion this week and could not be reached for comment Friday.
According to court papers, in a post just two days after he was fired in October 2010, Elonis wrote: “Somebody once told me I’m a firecracker. Nah, I’m a nuclear bomb and Dorney Park just fucked with the timer.”
The fifth count in the indictment says Elonis threatened to go on a shooting spree in an unidentified kindergarten class.
According to court papers, one of Elonis’ Facebook posts read: “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?”
In a post alleged to be a threat against his ex-wife, who had obtained a protection from abuse order against him, Elonis allegedly wrote: “Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet? Try to enforce an order that was improperly granted in the first place. Me thinks the judge needs an education on true threat jurisprudence.”
After FBI agent Denise Stevens visited Elonis at his home to question him about some of his postings, he allegedly posted a lengthy threat aimed at her.
The posting, in verse form, said, in part: “Little Agent lady stood so close/ 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 the jugular in the arms of her partner (laughter).”
Elonis’ trial is scheduled to begin on Oct. 17, but U.S. District Judge Lawrence F. Stengel must first decide whether to grant a motion to dismiss the indictment on First Amendment grounds.
In the motion, Assistant Federal Defender Benjamin Cooper argues that Elonis’ Facebook postings “are nothing more than artistic expression and/or very crude, offensive methods of venting his frustration and anger with his job and personal life.”
The evidence, Cooper noted, shows that Elonis’ Facebook friends engaged in a “spirited exchange of opinions” and “sometimes disagreed or expressed vexation with him.”
And since many of the postings were in verse form, Cooper argues that it is clear Elonis “was writing fictitious lyrics and expressing his constitutional right to free speech.”
The postings cannot be punished as “fighting words,” Cooper argues, because “none of Mr. Elonis’ Facebook friends were provoked, or likely to be provoked, into a violent reaction by his statements.”
Cooper argues that a long line of decisions from the U.S. Supreme Court supports his argument that Elonis’ postings cannot be deemed “true threats” and that the statute itself is unconstitutional because it criminalizes speech that many ordinary Americans engage in on a daily basis.
“The clear direction of the Supreme Court’s jurisprudence in this area is to err on the side of First Amendment protections, and to reserve application of a threat statute to those situations in which a defendant unambiguously and intentionally communicates an intention to kill a person under circumstances in which a reasonable person would understand that the words constituted a threat,” Cooper wrote.
When Elonis’ postings are viewed “in context,” Cooper argues, it is clear that he “was not trying to communicate his statements to his wife, employer, law enforcement or an elementary school — just to his friends on Facebook.”
Cooper described Elonis as “a man who is extremely unhappy with his former employer and upset with his estranged spouse and life in general, who, as a means to vent his frustration and anger, utilizes his Facebook page for cathartic and expressive purposes and with disclaimers that his works were lyrics and an exercise of free speech.”
The reaction of Elonis’ Facebook friends, Cooper argues “was to laugh at Mr. Elonis and not to view his posted statements as serious threats.”
Although some expressed “concern about his mental health in a half-hearted, joking manner,” Cooper notes that nearly all of them “did not contact law enforcement authorities and they did not seek to have him arrested for criminal behavior.”
Only one Facebook friend — Elonis’ former co-worker, Daniel Hall, who is Dorney Park’s chief of park patrol — was “sufficiently disturbed to actually notify the authorities,” Cooper wrote.
Cooper also noted there was “no additional or circumstantial evidence of a threat” such as gathering weapons or formulating a plan.
For a criminal charge of making a threat to be constitutionally sound, Cooper argues, the prosecutors must allege a “subjective intent” to convey a threat, but the indictment does not include any such allegations.
In the final sections of his brief, Cooper argues that the cyberstalking statute itself, Section 875, is unconstitutional because it criminalizes too much speech and does not clearly define what would constitute an illegal threat.
“Given the astonishing breadth of Section 875(c) and the American cultural obsession with violence, the average citizen likely violates the law several times each day,” Cooper wrote.
As an example, Cooper argues that President Obama could be charged with violating the law for a televised comment he made to the Jonas Brothers, a musical group, that “Sasha and Malia are huge fans but, boys, don’t get any ideas. I have two words for you: predator drones.”
U.S. Courthouse Correspondent Shannon P. Duffy can be contacted at 215-880-3700 or firstname.lastname@example.org. •