Although not on direct appeal from the Sixth Circuit, the Supreme Court will hear oral argument today in a criminal case that will resolve a division between the Sixth and Ninth Circuits over what standard of “intent” should be applied to a criminal defendant charged under a law that makes it a crime to “transmit in interstate or foreign commerce any communication containing . . . any threat to injure the person of another.” The case arises in the wake of the Supreme Court’s fragmented opinion in Virginia v. Black, which held that a state may ban cross burning carried out with the intent to intimidate, but left unclear whether an objective or subjective standard applies to statutes that ban speech based on an “intent to intimidate.”

The Third Circuit in United States v. Elonis held that the “objective intent test” for the “true threats” exception to the First Amendment still applied after Black, and so Elonis could be properly convicted threatening to kill his wife, detonate explosives, and commit mass murder as long as a reasonable speaker would foresee that his statements would be interpreted as threats. This holding was in accord with the Sixth Circuit’s opinion in United States v. Jeffries, 692 F.3d 473 (2012), in which the court held that the trial court correctly rejected the defendant’s proposed instruction that would have required the government to prove the defendant’s subjective purpose in making the threatening communications. The Supreme Court denied certiorari in that case last year.

However, the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont disagree with the Third and Sixth Circuits (and many others), having held that the statute under which Elonis was convicted requires proof of the defendant’s subjective intent to threaten. Although the Supreme Court asked for supplemental briefing on an issue of statutory interpretation not originally contemplated by the parties, the Court will be reviewing the proper application of a significant exception to free speech protections, and, indirectly, a very recent Sixth Circuit decision that it declined to review on direct appeal. We will of course be watching the Court for its decision in this case.