Twitter LinkedIn
White Collar Posts

Elonis Facebook Case Has Life Beyond 2015 SCOTUS Decision

June 28, 2017

By: Abraham J. Rein and Ronald H. Levine

Many thanks to the excellent SCOTUSblog for tagging our second cert petition in the Elonis Facebook free speech case as its “Petition of the Day” (June 23, 2017). The case has run a long, interesting course.

Over two years ago, the U.S. Supreme Court ruled for our client, Anthony Elonis, in Elonis v. United States and reversed the Third Circuit’s decision affirming his conviction on interstate threat charges related to his Facebook posts. Chief Justice Roberts explained:

“Elonis’s conviction cannot stand. The Jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was an error. Federal criminal liability generally does not run solely on the results of an act without considering the defendant’s mental state…our holding makes clear that negligence is not sufficient to support a conviction…”

But the case did not end there. The Supreme Court remanded to the Third Circuit; the Third Circuit, taking a cue from Justice Alito’s separate opinion, directed additional briefing on the issue of whether the trial court’s instructional error was harmless; and, after oral argument, the Circuit decided (3-0) that the error was indeed harmless, and the conviction should stand.   

Our recent cert petition argues that the Third Circuit, in conflict with other Circuits, still errs in defining the requisite mental state for the crime and misapplies the harmless error framework. The government disagrees, of course. In the meantime, Mr. Elonis has served both his 44-month term of imprisonment and 3 years of supervised release.

Click here for our Petition for a Writ Of Certiorari.

Click here for the “Petition of the Day” on SCOTUSblog.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Authors:  

Abraham J. Rein is a Principal in the Firm's Internal Investigations & White Collar Defense and Co-Chair of its Information Privacy & Security Practice Group. Mr. Rein's national practice focuses on representing individuals and businesses in complex litigation settings, ranging in scope from consumer fraud to securities, civil rights, antitrust and government regulation. He has experience in the area of electronic discovery, advising clients on best practices for compliance with technically challenging preservation and production obligations when faced with a subpoena or anticipated litigation. Learn More.



Ronald H. Levine is Chair of the Firm’s Internal Investigations & White Collar Defense Group. He counsels and defends corporations, as well as directors, executives, professionals and others, confronting potential allegations of fraud or other misconduct at all stages of the government enforcement cycle: pre-enforcement internal investigations and compliance/governance counseling; responding to government inquiries, audits, subpoenas, search warrants and investigations; and trials and appeals, be they administrative, civil, qui tam or criminal.. Learn More.