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Fictional Scenario - Elonis v. U.S.

Apply Elonis v. U.S. to a realistic teen scenario. Facebook Postings – Artistic Expression or True Threats?

Andy Jackson is a 19-year-old sophomore at Bay State College. He and Sarah Somers have gone through a difficult breakup, after which he says she started rumors alleging inappropriate behavior that could jeopardize his basketball scholarship. Friends tell Andy what she is saying, and he sees on the Whisper app a series of damaging photos and videos that only Sarah could have posted. Andy is afraid that the allegations could cost him his place on the basketball team, which has a zero-tolerance policy regarding academic ethics, sexual misconduct, and illegal behavior.

Andy, who is known as “The Gunner” for his ripped biceps and aggressive style of play, also is a DJ and rapper whose lyrics get attention for their controversial double meanings.  He posts on Facebook a creative parody of some well-known rap lyrics implying that Sarah is a pathological liar who has gotten so wasted at parties that she has passed out.

In the meantime, Sarah starts dating Sam Bennett, a high-profile point guard on a rival basketball team. In another post, Andy’s lyrics claim that if Sarah keeps up the attacks on his reputation, she’ll “regret this day” because the next time she drinks too much at a party, she’ll learn a “new meaning of unconscious.” He also says that Sam should watch himself on the court because “The Gunner is locked and loaded.” Andy ends the post with a series of skull emojis and wink emojis.

Sarah feels threatened and is concerned enough about the posts that she goes to the campus police and asks how to get a restraining order against Andy. She also reports the posts to the director of campus life.

Ultimately, Andy is charged with two counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to “transmit [ ] in interstate or foreign commerce any communication containing…any threat to injure the person of another.”

At today’s hearing in federal court, Andy’s attorneys will argue that Andy’s statements were not true threats but free speech protected by the Constitution.

Whisper is a free mobile app. It is a form of anonymous social media, allowing users to post and share photo and video messages anonymously. The postings, called "whispers,” consist of text superimposed over an image.