Court Cases on the right of freedom of speech

Elonis v. U.S. Activity Package –

This First Amendment activity applies the landmark Supreme Court case Elonis v. U.S. to a teen conflict posted on Facebook.


The First Amendment Provides That

“Congress shall make no law . . . abridging the freedom of speech [.]”


1)      Read the summary below


Elonis v. U.S. is the first time that the Supreme Court of the United States agreed to hear a case involving the constitutionality of prosecuting threats in a social media.  This is a new and rapidly developing area of law.  The Court’s decision may have far-reaching consequences for the development of First Amendment law and for students and others who use social media.

Most students and a majority of adults use some form of social media, including Facebook, Twitter, LinkedIn, etc.  The growth of social media has often blurred the lines between professional and personal conduct. 

Problems have developed as statements made on social media are taken out of context.  This is especially true when the individual who makes a statement cannot control who else views the statement and/or how others interpret it.  For instance, several court cases have arisen over the authority of schools to discipline students for comments about teachers and school administrators that the students made outside of school on their own personal social media sites. 

There is common concern that comments made on social media sites may be misunderstood if they are taken out of context.  On the other hand, there are legitimate concerns that authorities must protect against cyberbullying, harassment, and threats that are made on social media.  As a result, when they are drafting laws, state and the federal lawmakers struggle with how to balance First Amendment free speech rights with the interests of individuals who want to be free from harassment, fear, and intimidation on the Internet.



2)      Look up court case: Watts vs. United States. Write 8 sentences or more in your notebook, summarizing this case.

Read about the case on the internet, then read the following together:


Key Point: True threats are not protected speech under the First Amendment.

In this case, the petitioner was convicted under a federal statute that made it a criminal offense to knowingly and willfully threaten the President of the United States. 

During the Vietnam War, Robert Watts made a political speech protesting the war and the draft.  In this speech, he informed the crowd that if he were ever drafted and made to carry a weapon, the first person that he would aim his gun at would be the President. The crowd responded to his statement with laughter.

In reversing his conviction, the Supreme Court noted that true threats are not protected by the First Amendment and could be prosecuted.  However, the Court also noted that Watts’ statements were “political hyperbole” and not a true threat.  As such, they were protected speech under the First Amendment. 

In reaching this conclusion, the court noted that Watts had not been inducted into the Army and likely would not be inducted.  His comments were made in a political context at an anti-war speech, and his comments evoked laughter.  Thus, they could not be construed as a true threat.  The Court did not specify whether an objective or subjective standard would be used to determine if speech is constitutionally protected by the First Amendment, or if such speech constitutes a true threat that can be prosecuted.


3)      Copy and Answer the following questions about the Robert Watts case. Write at least 3 sentences to answer each question. Use the internet for your research.

a)      Why was Robert Watts convicted?

b)      What did Robert Watts do that got him into trouble? What did the crowd do and why?

c)      What did the Supreme Court rule about Robert Watt’s conviction? Why?

d)      What does “Political hyperbole” mean? Define and explain.

e)      Do you think the ruling of the supreme court was correct or not? Explain.


Applicable Supreme Court Precedent

Virginia v. Black, 538 U.S. 343 (2003)


4)      Look up court case: Virginia v. Black. Read and summarize the case in 8 sentences in your notebook.

5)      Watch video on Virginia v. Black: Cornell notes: 2 sides of one page in notebook.


Key Point: Speech may or may not be a true threat, depending on the situation.

It was a crime in Virginia to burn a cross with the intent to intimidate.  The law also stated that the burning of a cross was enough proof on its face that a person intended to intimidate another.  The Supreme Court struck down the statute. 

The Court noted that burning a cross could constitute a threat if it were done with the intention of intimidating another.  However, the Court also noted that, even if offensive, cross-burning could also be a form of constitutionally protected speech.  An example of this would be a cross-burning to express a racist belief. The Court struck down the statute as overbroad because it prohibited both protected and unprotected speech.

As in Watts, the Court did not specify whether an objective or subjective standard would be used to determine if such speech was constitutionally protected by the First Amendment, or if it constituted a true threat that could be prosecuted.  As a result, in the wake of Virginia v. Black lower federal and state courts came to different conclusions when evaluating true threat cases.  Some adopted an objective standard, while others adopted a subjective standard.  It is widely thought that the U.S. Supreme Court accepted the Elonis case to resolve this issue.

6)      Why did the Supreme court strike down the Virginia statute that had made burning a cross a crime? Explain in 8 or more sentences. Copy the question.

Facts & Case Summary - Elonis v. U.S. - No. 13-983

7)      Students look up the court case Elonis v. U.S. and summarize the case in 1 page (one full page) of Cornell notes. Then read the following:

Anthony Elonis was arrested on December 8, 2010 and charged with five counts of violating a federal anti-threat statute, 18 U.S.C. § 875(c).  Specifically, he was charged with threatening his ex-wife, co-workers, a kindergarten class, the local police, and an FBI agent.

Elonis had posted statements on his Facebook page that appeared to threaten his ex-wife and other people in his life.  Prior to the postings, his wife and family had left him and he had lost his job at an amusement park. Shortly after this chain of events, Elonis posted several statements on his Facebook page that were interpreted as threats.

At his trial, Elonis asked the court to dismiss the charges, stating that his Facebook comments were not true threats.  He argued that he was an aspiring rap artist and that his comments were merely a form of artistic expression and a therapeutic release to help him deal with the events in his life.  

In an apparent attempt to underscore that his comments should not be taken seriously, he posted links to YouTube videos that he parodied, and noted that a popular rap artist often uses similar language in his lyrics.  For several of his comments, he also posted a disclaimer stating: “This is not a threat.” 

Despite the fact that his ex-wife, an FBI agent, and others viewing his comments might have perceived his statements as threats, Elonis argued that he could not be convicted of making a threat because he did not intend to threaten anyone with his postings. In other words, he claimed that he didn’t mean what he said in a literal sense. In legal terms, he said that he did not have a subjective intent to threaten anyone. 

The trial court denied his motion to dismiss the case.  The court held that the proper legal test for determining whether someone made a threat is an objective one:  whether reasonable people hearing the comment would perceive it to be a threat.  Elonis was convicted of four of the five counts.  He was sentenced to 44 months imprisonment, and three years of supervised release.[1]  He appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed his conviction.  The U.S. Supreme Court, granted certiorari (agreed to hear the case).  Oral arguments were heard on Monday, December 1, 2014.  A decision was made in 2015.

5) What arguments did Elonis bring to court to try to prove he was not guilty? At least 4 sentences. Copy the question.

[1] Please Note:  After the trial, Elonis, through his lawyers, filed post-trial motions with the trial court in an attempt to overturn the conviction.  These attempts also were unsuccessful.



Fictional Scenario

Elonis v. U.S. Applied to Teen Facebook Postings

Facing Off on Facebook:  Breaking Up is Hard to Do


Andy Jackson is an 18-year-old senior at Northwoods High School. He often posts rap lyrics on Facebook and is the ultimate computer nerd whose caption in the yearbook reads:  “Most likely to hack the Pentagon.” Andy’s computer skills and his reputation for hacking opponents on the lacrosse field have won him the nickname “The Hacker.” Andy’s girlfriend Sarah Somers is a competitive tennis player.  She comes to his lacrosse games on Fridays and they have a standing date to play tennis on Saturdays.

On Saturday night, Andy sees Sarah standing in a movie line holding hands with Sam Bennet, the new kid at school who just joined the lacrosse team and has started hitting with Sarah on the tennis court.   When he sees Sarah and Sam together Andy wants to confront them but his friends walk him away from the theater and drive him home.  On the way, he vents to his friends that the two hot-shot tennis players are going to “have to pay to play.”

That night, Andy writes a rhyming rap post on his Facebook page.  In it, he calls Sarah and Sam vulgar and offensive names.  Andy says that he is going to give Sarah a “taste” of his “wicked, backhand -- without a racket.”  He also says:  “My lacrosse teammates don’t call me ‘The Hacker’ just for my computer skills. I’m going to show Sam what it means to get hacked on the field -- with a machete.” Sarah and Sam are concerned and go to their parents who alert the school and the police.

Ultimately, Andy is charged with two counts of violating 18 U.S.C. Section 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.”

Andy says he never intended to threaten anyone. He writes lyrics all the time that have double meanings.  It’s a form of artistic expression that he has sharpened in high school. His lawyers argue that the charges should be dismissed because Andy’s statements were not true threats but constitutionally protected free speech.

For the following questions, answer in 3 or more sentences each. Copy the questions.


6)      Does the First Amendment require proof that a defendant is serious about following through on a threat before the defendant may be convicted of threatening another person?

7)      Does the First Amendment protect Mr. Andy Jackson’s comments, even though they may be potentially upsetting?

8)      Is it necessary to discover if the speaker means what he says in the threat in order to find it to be illegal or not?

9)      Should comments on social media be given any additional protections beyond comments made in person or by other means of communication?


Extra Credit: Jury Preparation Exercise

Elonis v. United States Applied to Teen Facebook Postings

Arguments Worksheet – Discussion Starter

Copy all the questions


1.      The First Amendment protects unpopular and even offensive speech. Such protections are necessary to preserve the free flow of ideas in a democracy.   (True or false? Explain in 2 sentences)


2.      The First Amendment does not protect all types of speech. For instance, obscenity, fighting words, and true threats are not protected and may be prosecuted.  (True or false? Explain in 2 sentences)


3.      Laws are frequently passed to prohibit conduct regardless of the intent of the defendant. For instance, a person who calls in a bomb threat may be prosecuted regardless of whether the caller ever actually intended to follow through with the threat. (True or false? Explain in 2 sentences)


4.      When a threatening statement is made, the damage is done when the intended victim hears the statement. The defendant should still be punished for this type of conduct whether the defendant intends to carry out the threat or not.  (True or false? Explain in 2 sentences)