Wednesday, December 3, 2014

WERE IT NOT ASSIZE-TIME ; )  On Monday, the Supreme Court heard arguments in Elonis v United States which should -- hopefully -- give us some guidance on the probative value of emoticons.

Elonis sent a message to an AUSA: "I am rapidly approaching the date of my release.  Accordingly, I would like to begin researching the ordinances of the municipality in which you reside.  I simply do not wish to run afoul of any of them when I set fire to a cross in your yard. :-p"  Elonis has appealed the effort by prosecutors to use this threat -- such as it is -- to add an additional condition to his probation, and argues that the emoticon showed he wasn't being serious.

To me, it seems that "I will kill you!" is different than "I will kill you ;)"  and might be different still than "I will kill you, Mr President =|:^| }}}}}"  Yes, there's a law review article in here somewhere, and I've got a stack of notes I've been collecting on this very point but never quite gotten around to getting it to paper.


  1. Are you sure that the emoticon piece was related to the SCOTUS case? I thought the SCOTUS case was about the threats he made against his wife, which led to his conviction (under the standard he is challenging) and then to his probation, in anticipation of which he sent the emoticon message. I.e., although the emoticon issue involved him, I thought it was not part of this particular case.

  2. Benner6:54 PM

    That's the second time the AUSAs failed to realize Virginia v. Black applied to something Elonis wrote :-)