Case report: Elonis v. United States

Abstract

The U.S. Supreme Court’s 2015 decision in Elonis v. United States (575 U.S. __ (2015)), a case about threats, and the underlying trial and appellate decisions, are analysed. Threats can be perlocutionary or illocutionary. When they are illocutionary, they are always indirect speech acts, requiring a Gricean chain of reasoning to infer their threatening nature. This has the consequence that every putative threat has, also, a non-threat interpretation, making it sometimes difficult to prove that an utterance was a threat. In this report, Anthony Elonis’s Facebook postings of allegedly threatening items are analysed pragmatically; the sophisticated linguistic reasoning used by the appeals court after Elonis’s conviction – involving semantic opacity – is described; and the final outcome of Elonis’s case, the Supreme Court’s decision, is analysed. That decision is both frustrating, because it leaves unresolved what the standard for proof is for threatening, and interesting, because the majority opinion, and, in particular, the dissent by Justice Alito, adduce a factor – recklessness – unnecessary to the linguistic analysis of threatening but relevant to the legal standard of proof for conviction for unlawful threatening.