The Atlanta Lawyer August/September 2015 | Page 41

SLIP Student Essays
rea, from Roberts’ perspective,
runs contrary to the purpose of
a justice system: to discipline
those who knowingly break the
law. Although the Government
claims that the status quo
burden of proof is not one of
negligence, Justice Roberts
finds the two indistinguishable
and inappropriate for the
proceeding. Thus, he orders
that Elonis’ conviction be
overturned and the case be
remanded.
Justice Samuel Alito writes
a partially concurring and
partially dissenting opinion,
although he votes with the
majority. While Alito agrees
that the negligence standard
was insufficient to convict
Elonis, he argues that the
Court’s lack of a recommended
alternative will only serve
to confuse prosecutors and
attorneys in future cases. Chief
Justice Roberts intentionally
chose not to decide whether
recklessness would be an
acceptable burden due to the
lack of arguments from both
the petitioner and respondent
on the subject. Nevertheless,
Justice Alito remarks that it
is unfair to ask prosecutors
to prove anything beyond
negligence in threat cases.
Doing so would not serve
any compelling interest to
the rights of the accused, but
would further complicate the Government’s role in future trials.
Justice Clarence Thomas, as the lone dissenting voice in
Elonis, argues that the Court should have upheld the decision
of eleven Circuit Courts that faced similar cases - that
only general intent must be proven. From Justice Thomas’
perspective, the prosecutor need only demonstrate that the
defendant “knew he transmitted a communication, knew
the words used in that communication, and understood the
ordinary meaning of those words in the relevant context.”
Prescribing anything more stringent is the duty of Congress,
not of the Supreme Court. In this case, Justice Thomas takes
The Official News Publication of the Atlanta Bar Association

a particularly modest stance on the role of the judiciary, one
that typifies his judicial philosophy.
None of the Justices’ comments in Elonis approved of Anthony
“Tone Dougie” Elonis’ crude lyrics, nor do they regard these
Facebook posts as entirely innocuous In an 8-1 decision,
however, the Supreme Court did elect to interpret 18 U.SC.
875(c) as carrying an implicit burden to prove intent. In doing
so, it not only overturned Elonis’ conviction but also separated
poorly conceived comments from legitimate threats, indirectly
protecting a citizen’s right to free speech.

August/September 2015

THE ATLANTA LAWYER

41