gross deviation from a reasonable standard of care

On March 14, 1955, at about 3:30 p.m., defendant Emil A. Decina was driving his car alone in a northerly direction on Delaware Avenue in Buffalo when the vehicle swerved left across the center line and then sharply right, mounting the easterly curb at high speed. The car struck six schoolgirls walking on the sidewalk. Three children aged 6 to 12 were killed on the scene and a fourth child died two days later in the hospital from injuries sustained in the accident. After the collision, the car continued, struck a lamppost, and crashed through a brick wall into a grocery store, where Decina was found stooped over the wheel appearing dazed. Decina was taken to E. J. Meyer Memorial Hospital at 5:30 p.m. A pink slip from the Buffalo Police Department accompanied him, requesting examination and noting the fatal accident and the recommendation of the District Attorney. There, Dr. Wechter, a resident physician, spoke with Decina in the presence of a police guard and obtained his medical history of epilepsy, including prior treatment, operations, seizures, and medication. Decina was indicted for violating section 1053-a of the Penal Law. Following conviction after his demurrer was overruled, the Appellate Division reversed on the law and granted a new trial on the ground that the transactions with Dr. Wechter were privileged, while sustaining the overruling of the demurrer. Both the People and the defendant appealed.

Anthony Douglas Elonis was an active user of the social networking website Facebook. In May 2010, Elonis’s wife of nearly seven years left him, taking with her their two young children. Elonis began listening to more violent music and posting self-styled rap lyrics inspired by the music under the pseudonym Tone Dougie. The lyrics Elonis posted included graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement. This material was often interspersed with disclaimers that the lyrics were fictitious with no intentional resemblance to real persons. Elonis posted a photograph of himself holding a toy knife against a co-worker’s neck with the caption I wish, after which the chief of park security fired him. Elonis posted an adaptation of a satirical sketch in which he substituted his wife for the President. The posting described firing a mortar launcher at her house from the cornfield behind it. After viewing some of Elonis’s posts, his wife felt extremely afraid for her life and obtained a three-year protection-from-abuse order against him. Elonis posted about the order and referenced having enough explosives to take care of the State Police and the Sheriff’s Department. Elonis posted an entry stating he had enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. After park security informed the FBI, agents monitored Elonis’s Facebook activity and visited his house. Elonis then posted Little Agent Lady describing slitting an FBI agent’s throat and detonating a bomb. A grand jury indicted Elonis on five counts of violating 18 U.S.C. §875(c). At trial Elonis requested a jury instruction that the government must prove that he intended to communicate a true threat. The District Court instead instructed the jury that a statement is a true threat when a defendant intentionally makes a statement in a context wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of an intention to inflict bodily injury. The jury convicted Elonis on four of the five counts. The Third Circuit affirmed. The Supreme Court granted certiorari.