Pennsylvania man's Facebook threats spur First Amendment case

Anthony D. Elonis was an operations supervisor at Dorney Park and Wildwater Kingdom in 2010 when, in the space of two months, he lost his job, his wife left him, a court told him to stay away from her, and he was forced to move back home with his parents.

Elonis took to venting his rage with threats on his Facebook page. His postings, often in the form of rap lyrics, do not make pleasant reading.

Now a federal jury is going to decide whether Elonis' postings rise to the level of a crime, or whether including disclaimers along with his rants gives him First Amendment protection. Testimony began Monday in U.S. District Court.

About his wife, Elonis wrote: "Fold up your PFA [protection-from-abuse order] and put it in your pocket. Is it thick enough to stop a bullet?"

About his former employer, he wrote: "Someone once told me that I was a firecracker. Nah, I'm a nuclear bomb and Dorney park just [expletive] with the timer."

After the FBI showed up, called in by Elonis' former Dorney supervisor, he threatened to cut an agent's throat.

And he wrote this:

"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."

Elonis' rants were posted on his public Facebook page, meaning anyone who searched for his name on the social-networking site - as the FBI did - could read his angry threats. Among those doing so were his wife and his former boss.

But ranting is not necessarily a violation of the federal law that prohibits communication of threats to injure another person across state lines.

Assistant U.S. Attorney Sherri A. Stephan will have to prove that Elonis' threats were what the law calls "true threats," which a reasonable person familiar with the context would interpret as a real threat to commit harm.

Context is the crux of Elonis' defense. "It's a question of the circumstances," defense attorney Benjamin B. Cooper told the jury. "My client was under a lot of duress," and Elonis' disclaimers called his posting fictional and compared his words to rap lyrics not intended to be taken at face value. "He used that as expression of what he felt," Cooper said.

After one particularly violent rant, Cooper said, Elonis, 28, ended the posting by writing, "And if you believe that I have bridge rubble to sell you."

On the other hand, Stephan said she would be calling witnesses, including Elonis' soon-to-be ex-wife and former boss, who will testify that they were genuinely in fear of their safety.

FBI agent Denise M. Stevens told the jury Monday that she did not find Elonis' Facebook disclaimers convincing. "To me, they made it even more threatening," she said.

Elonis, of Bethlehem, Pa., has been held pending trial since December. A federal magistrate determined that he was a threat, and FBI agents said in an affidavit that they found short lengths of pipe and end caps in his home. Such items can be used in pipe bombs, though the FBI affidavit did not make that specific allegation.

In court Monday, Elonis, of medium height with brown hair and wearing glasses, said nothing. He was dressed in a dark suit and dark blue shirt and a necktie.

Cooper declined to say whether Elonis would testify in his own defense. Elonis faces up to a five-year sentence if convicted. His wife and former boss are expected to take the stand later this week. Cooper told the jury, "She gave it back as much as she got it."

Courts have often upheld Facebook postings on First Amendment grounds. A Florida school was told it could not suspend a student who wrote that her teacher was "the worst" and the National Labor Relations Board has defended workers' rights to criticize their employers.

In July, a federal appeals court sitting in California reversed a man's conviction for writing of President Obama: "he will have a 50 cal in the head soon."

According to the Courthouse News Service, the ruling said the man was an "an especially unpleasant fellow" and his posting on a Yahoo forum in 2008 was "particularly repugnant," but the statements did not constitute threats under federal law, which "does not criminalize predictions or exhortations to others to injure or kill the president."

In Elonis' case, he is accused of threatening to injure people himself.