The supreme court tomorrow will hear oral arguments in the case of Elonis v. United States. The legal question to be argued is:
(1) Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.
Elonis was convicted for the high crime of posting rap lyrics he had authored to his Facebook page and as a result was sentenced to 44 months in prison to be followed by three years of supervised release.