Court Overturns ‘Threat’ Conviction, But Leaves Mens Rea Standard UnclearJune 16, 2015 | | |
The U.S. Supreme Court has ventured into the world of violent online speech. On June 1, in Elonis v. United States,1 the court overturned a defendant’s criminal conviction for communicating threats on Facebook. The court ruled that a mens rea standard of negligence was insufficient to allow the conviction to stand, but it did not explain what standard should be applied. Social media users—as well as prosecutors, defense lawyers, trial courts, and appellate judges—undoubtedly will be exploring this issue for quite some time to come.
A Pennsylvania grand jury indicted Anthony Douglas Elonis, an active user of the social networking website Facebook, for posting threats on Facebook to injure his estranged wife, patrons and employees of the park where he worked, police officers, a kindergarten class, and an FBI agent, all in violation of 18 U.S.C. §875(c), which makes it a crime to transmit in interstate commerce “any communication containing any threat … to injure the person of another.”2
Elonis moved in the U.S. District Court for the Eastern District of Pennsylvania to dismiss the indictment for failing to allege that he had intended to threaten anyone. The district court denied the motion, holding that prosecutors only had to demonstrate that Elonis “intentionally made the communication, not that he intended to make a threat.”
At trial, Elonis testified that his posts emulated the rap lyrics of the performer Eminem, some of which involved fantasies about killing his ex-wife. In Elonis’ view, he had posted “nothing … that hasn’t been said already.”
The government presented as witnesses Elonis’ wife and co-workers, all of whom said they felt afraid and viewed Elonis’ posts as serious threats.
Elonis requested a jury instruction that the government had to prove that he “intended to communicate a true threat.” The district court denied that request. Instead, the jury instructions informed 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.
The government’s closing argument emphasized that it was irrelevant whether Elonis had intended the postings to be threats—”it doesn’t matter what he thinks.” A jury convicted Elonis on four of the five counts against him, acquitting only on the charge of threatening park patrons and employees. The district court sentenced Elonis to three years, eight months’ imprisonment and three years’ supervised release.
On appeal to the U.S. Court of Appeals for the Third Circuit, Elonis renewed his challenge to the jury instructions, contending that the jury should have been required to find that he had intended his posts to be threats. The Third Circuit disagreed, holding that the intent required by §875(c) only was the intent to communicate words that the defendant understood, and that a reasonable person would view, as a threat.
The Supreme Court granted certiorari.
The Court’s Decision
The court (8-1), in a majority opinion by Chief Justice John Roberts, reversed the conviction; Justice Samuel Alito concurred in part and dissented in part and Justice Clarence Thomas dissented.
In the majority opinion, the court explained that §875(c) requires that a communication be transmitted and that the communication contain a threat. The court added, however, that the statute does not specify that the defendant must have any mental state with respect to these elements and, in particular, does not indicate whether the defendant must intend that his communication contain a threat.
The court then observed that the fact that the statute does not specify any required mental state “does not mean that none exists.” It said that a defendant must be “blameworthy in mind” to be found guilty, a concept expressed through terms such as “mens rea, scienter, malice aforethought, guilty knowledge, and the like.” Moreover, the court continued, when interpreting federal criminal statutes (such as §875(c)) that are silent on the required mental state, it reads into the statute “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.'”
The government’s position, the court said, was that Elonis could be convicted if he himself knew the contents and context of his posts, and if a reasonable person would have recognized that the posts would be read as genuine threats. According to the court, that was a “negligence standard.” It then rejected that test, ruling that Elonis’ conviction had to be reversed.
The court declared that federal criminal liability “generally does not turn solely on the results of an act without considering the defendant’s mental state.” Clearly, therefore, the mental state requirement in §875(c) would be satisfied if a defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.
Significantly, however, the court did not rule on whether a lesser standard—such as recklessness, a standard right above negligence—also could lead to a criminal conviction under §875(c). Indeed, the court specifically refused to address whether a finding of recklessness would be sufficient for liability under §875(c). Instead, the court remanded the case to the Third Circuit for further proceedings in the case.
The Open Issues
The majority clearly indicated the standard that does not apply under §875(c): negligence. Thus, the instructions to the jury at the Elonis trial were defective because they required only negligence in conveying a threat.
The court, however, did not explain what type of intent was necessary to convict Elonis—and, at the least, this is likely to cause confusion and serious problems in the next stages of the Elonis case and in future cases involving other defendants.
Importantly, the court based its decision on the statute alone, and did not consider what standards are mandated by the First Amendment in this kind of case. The court may have to opine on that in the future.
As Alito noted in his opinion, it is not clear from the majority opinion if the Elonis jury needed to find that he had the purpose of conveying a true threat or if he knew that his words conveyed such a threat. It also is not clear if recklessness would suffice.3
Interestingly, Alito stated that he would hold that a defendant may be convicted under §875(c) if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat. Alito added that nothing in the court’s “non-committal opinion” prevents lower courts from adopting that standard. Whether district courts or circuit courts of appeals will adopt that position remains to be seen.
The court’s failure to set forth a standard for a conviction under §875(c) not only leaves trial courts and appellate judges at bay, but the uncertainly may embolden social media users to post abusive comments on Facebook and other sites without fear of prosecution.4
A decision by the Supreme Court upholding Elonis’ conviction, which certainly would have led to fewer online threats against women, co-workers, first responders, and the public at large, would have been welcomed by many.5 That did not occur, and the practical ramifications of the court’s ruling remain to be seen.
1. No. 13-983 (U.S. June 1, 2015).
2. Conviction under §875(c) requires proof that the defendant transmitted something, the thing transmitted was a threat to injure the person of another, and the transmission was in interstate or foreign commerce. In particular, §875(c) provides:
Whoever transmits in interstate or foreign commerce any communication containing … any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
3. Justice Clarence Thomas agreed that, following the majority’s decision in this case, lower courts are “left to guess at the appropriate mental state” for §875(c).
4. Facebook notes in its “Community Standards,” available at https://www.facebook.com/communitystandards:
We remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety….
We carefully review reports of threatening language to identify serious threats of harm to public and personal safety. We remove credible threats of physical harm to individuals. We also remove specific threats of theft, vandalism, or other financial harm.
5. A number of opponents of domestic violence have criticized the court’s ruling. Mai Fernandez, executive director of the National Center for Victims of Crime, told the Washington Post: “The Internet is the crime scene of the 21st century. The laws governing social media require swift interpretation to keep pace with the ever-advancing criminal activity in this space.” Kim Gandy, president of the National Network to End Domestic Violence, pointed out that threats “play a central role in domestic abuse and is a core tactic that many abusers employ.” She said that they cause harm “regardless of whether the abuser intended to threaten or only intended to vent or to make a joke.” See Robert Barnes, “Supreme Court throws out conviction for violent Facebook postings,” Washington Post, June 2, 2015, available online at http://www.washingtonpost.com/politics/courts_law/supreme-court-throws-out-conviction-for-violent-facebook-postings/2015/06/01/68af3ee0-086b-11e5-a7ad-b430fc1d3f5c_story.html.
Reprinted with permission from the June 16, 2015 issue of the New York Law Journal. All rights reserved.