Constitutional Law Criminal Law Litigation

Supreme Court Ducks Main Issue in Internet Threat Case

The Supreme Court yesterday issued a long awaited decision in Elonis v. United States that failed to address the core issues presented by the case involving harsh language posted on the Internet. Under a 1939 federal criminal statute prohibiting the communication of threats, Anthony Elonis was charged with threatening his wife; a kindergarten class; and law enforcement officers; — including a female agent who visited his house to question him. All were subjects of rap-style lyrics he posted to Facebook, under the pseudonym Tone Dougie. Elonis claimed that disclaimers he posted on his page proved that he did not mean the language to be “true threats.”

Here’s one example of Elonis’ Facebook postings, quoted by the Supreme Court on Monday:

“Fold up your [order of protection] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order that was improperly granted in the first place
Me thinks the Judge needs an education on true threat jurisprudence
And prison time’ll add zeros to my settlement . . .
And if worse comes to worse
I’ve got enough explosives
to take care of the State Police and the Sheriff ‘s Department.” I wrote about the case as it headed for argument to the Supreme Court in a blog post Here

A jury convicted him of communicating threats and Elonis was sentenced to more than three years in prison. His appeal was heard by the Supreme Court in December 2014. Since then, the Internet community has been watching the case and waiting for the Court’s decision, eager for a clear understanding of how to distinguish the legal but colorful and often rough language used on discussion forums; in blog posts; and in comments to web articles and “true threats.” More importantly, did the Government have to prove that the defendant intended to threaten the subject of the posts or was it enough that the subjects of the post felt threatened? Could a defendant be convicted if he acted recklessly – that is ignored the risk the his language could be viewed as a threat? But the Court, in a 7-2 decision written by Chief Justice Roberts,took a pass on those issues and decided the case based on what it saw as an erroneous jury instruction.

The lower Federal Court had instructed the jury:

A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.

So it only mattered that Elonis intended to make the post; if a reasonable person would perceive the post as a threat, then he could be convicted under the law even if Elonis did not mean to actually threaten anyone. Judge Roberts found this instruction insufficient and said it turned a criminal case into a civil case:

 Chief Justice John G. Roberts.
Chief Justice John G. Roberts.
Elonis’s conviction . . . was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct- awareness of some wrongdoing. 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 and we have long been reluctant to infer that a negligence standard was intended in criminal statutes.

Justice Alito and Justice Thomas wanted the Court to go further and specifically delineate the mental state required to be proven, particularly stressing that the Court should state if “recklessness” was sufficient. Both Justices criticized the Court for leaving these issues open, with Alito clearly attacking Roberts’ position:

The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the
Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard.

Alito comes right out and say that recklessness should be enough and goes one step further and says the First Amendment does not protect speech if the language is a true threat even if the sender did not intend it to be a true threat. Judge Thomas felt that the intent of the sender was irrelevant and that all that should matter was whether the speech would be defined as a true threat. He went on to state that the Court should have made clear what level of conduct was required under the statute:

Our job is to decide questions, not create them. Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today’s decision rests.

Both opinions would have created havoc in the Internet community as many folks could be charged criminally by just making harsh posts that others considered threats. Both opinions tried to challenge the majority to make a stand and make a definitive ruling. Judge Roberts did not bite – he made clear that the decision went far enough. Nine Federal Appeals courts had said that negligence had been enough and had used language similar to the language used in this case. This case, he says, establishes that negligence is not enough. If and when the lower courts apply a reckless standard, the Court can decide then if that is also enough – but for now, “[n]o Court of Appeals has even addressed that question. We think that is more than sufficient justification for us to decline to be the first appellate tribunal to do so.”

I recently argued a similar case before the Georgia Supreme Court called Chan v. Ellis in which a host of a discussion forum was charged with threatening the subject of certain posts he and others wrote. During oral argument, my co-counsel, the Constitutional law scholar Eugene Volokh, was asked a justice whether the court should wait to see what SCOTUS did on Elonis before deciding our case. Professor Volokh answered “No” arguing that it was clear that the criminal statute involved in our case required an intent to communicate a threat and that negligence would not be enough, whereas that was the only real issue in Elonis He was right.

So Court watchers and others will have to wait a few more years until those questions come before the Court. Likewise, it looks like it may require another batch of cases for the Court to shape the level of First Amendment protection afforded to Internet language that can be perceived by others to be threatening even if the speaker did not intend to make a threat.

Read the entire Court opinion Here

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