Why it matters: In Elonis v. United States, the U.S. Supreme Court addressed for the first time the issue of what constitutes a threat in Facebook posts for purposes of a federal statute that makes it a crime to transmit threats in interstate commerce. In holding that the "reasonable person" test is not sufficient, and that the poster's state of mind must be considered as well, the Court arguably leaves an unclear standard for future courts to grapple with.
Detailed discussion: On June 1, 2015, in a 7-2 opinion written by Chief Justice John C. Roberts, the U.S. Supreme Court handed down its opinion in Elonis v. United States. The issue for the Court to decide in Elonis was whether death and bodily harm threats posted by Anthony Douglas Elonis on his Facebook page that were directed at his estranged wife, police, co-workers and a neighborhood kindergarten class constituted a crime under 18 U.S.C. Sec. 875(c), which provides that any individual who "transmits in interstate or foreign commerce any communication containing any threat to … injure the person of another" is guilty of a felony and faces up to five years in prison. The Third Circuit affirmed the district court jury's opinion that said yes, based on the "reasonable person" test—i.e., whether a reasonable person would find the language threatening. The Court reversed, holding that the reasonable person test was not enough to prove criminal liability under 18 U.S.C. Sec. 875(c) and that the mental state of the person making the threats must be considered as well. Justice Roberts made a point of saying that "given our disposition here," the Court specifically was not addressing any First Amendment free-speech issues.
To briefly recap the facts, after his wife left him in 2010, Elonis began to post (under the pseudonym "Tone Dougie") what he claimed were rap lyrics that contained "graphically violent language and imagery" concerning his estranged wife, co-workers, police and a kindergarten class at a neighborhood school. When challenged by other Facebook users, Elonis (outside of his "Tone Dougie" persona) claimed that his posts were "therapeutic" and an artistic outlet (to help him "deal with the pain"), and that the lyrics were "fictitious" with no intentional "resemblance to real persons." His wife disagreed, testifying that she felt "extremely afraid for [her] life," and obtained a three-year restraining order from a state court. Elonis, as "Tone Dougie," continued to post violent "rap lyrics" and began invoking his "freedom of speech" rights. A grand jury indicted Elonis for making threats in violation of 18 U.S.C. Sec. 875(c). At his jury trial in district court, Elonis testified that his posts were meant to emulate the rap lyrics of artist Eminem, which often contain "fantasy" language about killing his ex-wife, and that he didn't "intend" to threaten anyone. The government countered with testimony from Elonis's estranged wife and co-workers that "they felt afraid and viewed Elonis's posts as serious threats." Elonis requested a jury instruction that "the government must prove that he intended to communicate a true threat," which the district court denied and instead approved a jury instruction with the "reasonable person" test. In closing arguments, the government emphasized that it was "irrelevant" whether or not Elonis intended the postings as threats, telling the jury that "it doesn't matter what he thinks." The jury convicted Elonis of four of the five counts against him, and he was sentenced to almost four years in prison. Elonis appealed his conviction to the Third Circuit, arguing that the jury should have been "required to find that he intended his posts to be threats." The Third Circuit denied his appeal, holding that "the intent required by Section 875(c) is only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat."
The Court disagreed, and reversed. Justice Roberts, writing for the majority, began the Court's analysis by stating that 18 U.S.C. Sec. 875(c) "requires that a communication be transmitted and that the communication contains a threat. It does not specify that the defendant must have any mental state with respect to those elements. In particular, it does not indicate whether the defendant must intend that his communication contain a threat." After hearing arguments from both sides, the Court acknowledged that "neither Elonis nor the Government has identified any indication of a particular mental state requirement in the text of Section 875(c)." The Court went on to state, however, that "[t]he fact that the statute does not specify any required mental state does not mean that none exists." The Court looked to case law precedent to find that, in criminal cases and under statutes that impose criminal liability, there is a "presumption in favor of a scienter requirement" as opposed to civil liability tort cases where the reasonable person test applies. The Court thus concluded that it was "error" for the jury to be instructed that the government need only prove that "a reasonable person" would regard Elonis's posts as threats. Stating that a mental state of the person making the threat must be considered as well, the Court cited precedent to find that "[u]nder Section 875(c), 'wrongdoing must be conscious to be criminal.'"
The Court went on to hold that "the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat." The Court left open whether "recklessness" would be sufficient to prove intent under Section 875(c), which both Justice Alito (concurring in part and dissenting in part) and Justice Thomas (dissenting) took the majority to task for in their separate opinions. Justice Roberts said that Justice Alito was "wrong" to suggest that "we have not clarified confusion in the lower courts," stating that "[o]ur holding makes clear that negligence is not sufficient to support a conviction under Section 875(c) contrary to the view of nine Courts of Appeals." Noting that there was no circuit split on the issue of whether recklessness was sufficient to prove mental state under Section 875(c)—indeed "no Court of Appeals has even addressed that question"—the Court "decline[d] to be the first appellate tribunal to do so."
The Court's holding in Elonis may have impacted the recent conviction after jury trial of another Facebook poster in U.S. v. Bradbury, who was found guilty under a different statute from the one at issue in Elonis, 18 U.S.C. Sec. 844(e), for "willfully" making a threat, or "maliciously conveying" false information (knowing it to be false) "to kill, injure, or intimidate any individual … by means of fire or an explosive." The defendant in that case, Samuel Bradbury, had posted a message on Facebook in June 2014 threatening, together with his "band of anarchists," to bomb a courthouse in Indiana. Bradbury argued that he was just "blowing off steam" and that everything in the post was fake and not meant as a threat. Moreover, he claimed that the statute was overbroad and violated his First Amendment free speech rights. Interestingly, the judge overseeing the case, Judge Philip P. Simon of the Northern District of Indiana, allowed the jury to hear (over the government's objection) the testimony of a so-called "social media expert" called by Bradbury who testified about "the general behavior of Facebook users."
The jury convicted Bradbury on July 2, 2015—a full month after the Elonis decision. At Judge Simon's request, the parties had filed pretrial briefs on June 11 and June 22 about the Elonis decision and what impact, if any, it should have on the jury instructions in the Bradbury case, but it is unclear from the record how Judge Simon ruled or how the jury was instructed on the issue. On July 28, Bradbury moved for a new trial (not on Elonis or jury instruction grounds), which was denied by Judge Simon on August 14. Bradbury is currently awaiting sentencing, after which an appeal (perhaps on Elonis and/or jury instruction grounds) may ensue. We got a sense of Judge Simon's thinking on the matter, however, when he denied Bradbury's motion to dismiss on May 22, 2015, which cleared the way for Bradbury's jury trial. Judge Simon noted in that opinion that "[d]eciding when something is a 'true threat' and when it is mere hyperbole is dicey business. A lot of people spout off online via Twitter, Facebook and other social media. That, of course, is their First Amendment right. But determining when the comments cross the line from permissible First Amendment expression to true threats is difficult. The line is hazy, and the question becomes does speech have to be threatening to a reasonable person who may hear or read the comment or is it the intent of the person making the statement that matters? In other words, is the standard an objective or subjective one? The Supreme Court is grappling with those very questions right now in the case of Elonis v. United States." Judge Simon concluded that in the case before him, "the 7th Circuit, at least currently, [does not] require specific intent. Until the Supreme Court says otherwise, perhaps through Elonis, I am bound to follow and apply an objective standard when determining whether a statement constitutes a threat."
Click here to read the 6/1/15 U.S. Supreme Court opinion in Elonis v. United States, No. 13-983 (U.S. 2015).
Click here to read the 5/22/15 Northern District of Indiana opinion in United States v. Bradbury, No. 2:14-cr-71 PS (N.D. Indiana 2015).