• Elonis v. United States: Treading Carefully with Regard to Threats and Free Speech

    by  • June 5, 2015 • Faculty Commentary • 0 Comments

    Heyman_Steven thumb By Steven J. Heyman [Reposted from ISCOTUSnow]


    This Monday, June 1, 2015, the Supreme Court handed down its long-awaited decision in Elonis v. United States. In a 7-2 ruling by Chief Justice John G. Roberts, Jr., the Court narrowed the circumstances under which individuals can be convicted of making criminal threats under federal law when they post statements on social media like Facebook. At the same time, the Court showed a prudent inclination to tread cautiously in a difficult area.

    After Anthony Elonis’s wife left him, he began to write graphically violent rap lyrics and post them to his Facebook account. In several posts, he fantasized about murdering his estranged wife. Others contained violent thoughts about the workplace from which he had been fired, his former co-workers, and an FBI agent who had investigated the matter. In one post, he even talked about massacring a local kindergarten class.

    Elonis was tried and convicted in federal court of four counts of violating 18 U.S.C. § 875(c), a 1939 law that makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” The trial judge instructed the jury that, under this statute, it is not necessary for the prosecution to prove that the defendant intended his statements to be threatening. Rather, it is enough to prove that the defendant reasonably should have known that other people would take his statements to be threats—a standard that is often referred to as negligence.

    On appeal, the United States Court of Appeals for the Third Circuit agreed with this interpretation of § 875(c). The court also rejected Elonis’s argument that the posts were protected by the First Amendment freedom of speech. Instead, the court held that when a person makes a statement that he reasonably should know will be taken as a threat, this is enough to characterize the statement as a “true threat”—a category of speech that the Supreme Court has held to be outside the protection of the First Amendment.

    In their appeal to the Supreme Court, Elonis’s lawyers urged the Justices to clarify their “true threats” jurisprudence by holding that, under the First Amendment, an individual can never be held criminally responsible for making a threat unless he subjectively intended his statement to be threatening. In response, the federal government defended the negligence standard which had been accepted by the Third Circuit as well as by most other federal courts.

    On Monday, the Supreme Court handed Elonis a victory by overturning his conviction. At the same time, however, the Court declined his invitation to issue a broad ruling on First Amendment grounds. Instead, the majority took a minimalist approach, deciding no more than was absolutely necessary to dispose of the case before it. In particular, the majority focused solely on the statute under which Elonis had been convicted. Although the text of § 875(c) does not contain a state-of-mind requirement, that was not the end of the story. As Chief Justice Roberts explained, our legal tradition has long followed the general principle that an individual can be convicted of a crime only when he has engaged in conscious wrongdoing. It follows that, to convict a defendant under § 875(c), the government should be required to prove more than mere negligence. The statute’s state-of-mind requirement clearly would be satisfied if the defendant acted with the purpose of threatening another or if he knew that his statement would be viewed as a threat. At oral argument, some members of the Court had suggested that it should be enough if the defendant was reckless in the sense that he acted with an awareness of a substantial risk that his statement would be taken as a threat. However, because the recklessness issue had not been adequately discussed in the lower courts or in the parties’ briefs and arguments, the Chief Justice declined to address whether recklessness was sufficient. And because he overturned Elonis’s conviction on statutory grounds, he also found it unnecessary to address the First Amendment issues in the case.

    The Court’s determination to avoid sweeping constitutional pronouncements in Elonis was a wise one, for the problems that arise in this area are far more complex than they may seem at first glance. In cases like Elonis, in which an individual is being prosecuted for a criminal offense, our legal system has traditionally insisted on high standards of culpability and proof to ensure that innocent persons are not subjected to unjustified stigma and punishment. In contrast, other cases involve civil suits that are brought by private individuals or groups for the harms that they have suffered from threatening statements. In still other cases, an individual may petition a court to issue an order of protection based on threatening speech or conduct by an abusive partner. It is highly doubtful that the legal and constitutional standards for threats should be the same in each of these contexts. Thus, it may well be reasonable to award civil damages or to grant an order of protection on less demanding grounds than should be required for a criminal conviction—a position that might have been precluded by a broad ruling that speech is protected by the First Amendment unless it amounts to an intentional or knowing (or even a reckless) threat.

    The nature of the speech at issue may also play a crucial role. As the Court has indicated in other cases, speech generally is entitled to substantially greater First Amendment protection when it is directed to a matter of public concern than when it relates to a purely private matter. This distinction suggests that a statement may more readily be treated as an unlawful threat in the latter situation (such as when the statement is directed against an ex-spouse) than in the former (such as when it occurs in the course of a political protest).

    As these considerations indicate, the Court in Elonis was quite right to refrain from announcing a one-size-fits-all definition of constitutionally unprotected “true threats.” For the same reasons, one can understand why the Justices chose to resolve the statutory issues as they did. The Court was confronted with a statute that did not specify any state-of-mind requirement, let alone address any of the complex issues that I have sketched. In this situation, it arguably was reasonable for the Court to hold that purpose or knowledge would suffice for a conviction under the statute but that mere negligence would not, while leaving it open to Congress or the lower courts to address the question of whether and in what situations recklessness should be enough.

    This is not to say that the majority’s minimalist resolution of Elonis comes without cost. By holding that proof of purpose or knowledge would satisfy § 875(c) while declining to address recklessness, the majority nudged the statute toward a higher standard of culpability than may be justified in some situations. In my view, recklessness should suffice to convict a defendant like Elonis who makes graphically violent statements concerning a former spouse or partner. Moreover, as the two dissenters pointed out, the Court’s decision will leave private individuals, prosecutors, defense lawyers, and lower courts in serious doubt about the standards that apply under § 875(c). As Justice Samuel A. Alito, Jr. observed, the Court proclaimed in Marbury v. Madison (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” while in Elonis the Court succeeded only in saying “what the law is not.” Likewise, Justice Clarence Thomas objected that the majority had “cast[] aside the approach used in nine Circuits and [left] nothing in its place.” In my view, it might indeed have been preferable in this case for the Court to have held that § 875(c) was satisfied by proof of recklessness, and that the First Amendment demanded no more in a criminal case like this, while leaving other issues to be resolved in the future. It may well be, however, that the Justices found themselves unable to forge a consensus in favor of recklessness or any other standard. If so, then while the decision in Elonis is hardly ideal, it may have been the best one attainable.

    Note: Professor Heyman was an advisor for an amicus brief in Elonis that was filed by the Domestic Violence Legal Empowerment and Appeals Project et al. in support of the respondent. The views expressed in this blog post are solely his own.

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