PHILADELPHIA (CN) - When his wife left him in 2010 and took their two young children, Anthony Elonis unleashed a flurry of macabre Facebook posts.
He wrote rap lyrics about blowing up the water park where he worked, killing his co-workers, destroying a kindergarten, and murdering his wife.
"Did you know that it's illegal for me to say I want to kill my wife?" he wrote, prompting her to seek a protection-from-abuse, or PFA, order.
That inspired a new lyric: "Fold up your PFA and put it in your pocket/Is it thick enough to stop a bullet?"
A federal jury found him guilty of six counts of threatening behavior in 2011, but the U.S. Supreme Court ordered review of the conviction last year, ruling 8-1 that the evidence must show that Elonis intended for his posts to threaten, not simply evoke fear.
With the Third Circuit reviewing the case for a second time Monday, Elonis' attorney insisted that his client was just venting.
"What's necessary is an awareness of the threatening quality of his statements," Abraham Rein, of Post & Schell, told the three-judge panel. "Not just the words and what they mean, but that a reasonable person would understand them to be threats."
Elonis has contended throughout the process that readers of his Facebook posts wouldn't have received them as more than the artistic expressions of a jilted husband. With the Supreme Court's holding in mind, Rein said, that would protect Elonis from conviction under the federal law that criminalizes "any communication containing any threat ... to injure the person of another."
But the circuit judges pushed Rein over his time limit for oral arguments while they questioned how Elonis could have possibly believed his meticulous descriptions of murder wouldn't have made his subjects cower, particularly after receiving visits from the FBI over the posts.
"How can that not be a threat and nothing but a threat?" asked Judge Thomas Hardiman, sitting via teleconference from Pittsburgh, with regard to the PFA lyric.
Rein argued that Elonsis' lyrics were more commentary on the idea of threats than threats themselves. "The lines that follow the ones you just quoted are, 'Try to enforce an order/That was granted in the firstplace/Me thinks the judge needs an education/on true threat jurisprudence,'" Rein said. "He's talking about the law. It's different in character."
Chief Judge Theodore McKee said the supposed meta expression was "hardly George Carlin's 'Seven Words You Can't Say [on Television].'"
Hardiman said, even in that context, the lines don't do much to mitigate the impact of the lyrics of him shooting his wife. U.S. Attorney Michael Levy agreed, arguing that the posts were baldly threatening, and that was Elonis' intention to begin with.
"When he has his wife getting a PFA order," Levy said. "When he has people saying, I'm scared about this guy, I think he's a ticking time bomb. When the FBI shows up at his door and he keeps posting these things? He knows what he's doing. He knows that all this is going to be received as a threat, but he tells us, 'It's therapeutic for me to do this.' Well if it was really therapeutic, these wouldn't be public posts. You'd put them in a private journal."
The statute at issue that potentially criminalizes Elonsis' posts, Section 875(c) of Title 18, is silent on what the level of intent, if any, is required for a conviction.
The Third Circuit's first ruling upholding the conviction, in 2013, said the statute requires only negligence, which would make Elonsis guilty for mere carelessness.
But the Supreme Court majority found this insufficient.
"Having liability turn on whether a 'reasonable person' regards the communication as a threat - regardless of what the defendant thinks - 'reduces culpability on the all-important element of the crime to negligence,'" Chief Justice John Roberts wrote for the majority.
Hardiman asked Rein whether, even under a stricter standard, his client had much chance to prevail in a case where his own ex-wife sought protection from law enforcement and the FBI came knocking on his door. If the Facebook posts were so damning against Elonis, wouldn't they reach the same verdict under the new standard, thus rendering any initial error harmless.
"Here we have a defendant who testified he didn't have the requisite mental state, and the jury was instructed seven times and reminded 10 more times that it didn't matter what his mental state was," Rein said. "And after hearing the testimony and listening to the instructions in the argument, the jury convicted him and he served 44 months in prison. It seems to me that approaches the definition of a harmful error."
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