The Supreme Court has skirted a difficult question once again, leaving everyone to wonder what constitutes a “true threat” under the First Amendment. In Elonis v. United States, 575 U.S. ___ (2015), the Court held that a person cannot be convicted of communicating threats simply because a reasonable person would view the statements as threatening. The majority opinion, authored by Chief Justice Roberts, was grounded in basic criminal-law principles and avoided the larger First Amendment issues presented in the case.
After his wife left him and took the children, Anthony Elonis began posting on Facebook rap lyrics with violent and graphic language that threatened his wife, co-workers, an FBI agent, and a local school. Elonis was convicted under a federal statute that makes it a crime to communicate “any threat to injure the person of another,” 18 U.S.C. § 875(c). The statute, however, does not specify any requisite mental state. Elonis argued that statutory construction and the First Amendment required the government to prove that he intended his statements to be a threat. During the trial, the district court rejected Elonis’ arguments and instructed the jury to consider whether a “reasonable person” would regard Elonis’ statements as threats. The 3rd Circuit affirmed.
The Supreme Court reversed, holding that the reasonable person standard is insufficient and “inconsistent with ‘the conventional requirement for criminal conduct— awareness of some wrongdoing.’” To be convicted of communicating a threat, the Supreme Court explained, the defendant must have a guilty mental state; however, the Court stopped short of specifying whether a defendant had to intend for a statement to be a threat or whether recklessness would suffice. In a concurring opinion, Justice Alito contended that recklessness is sufficient, while Justice Thomas, as the sole dissenter, would have preferred a reasonable person standard.
But the majority opinion did not address the larger constitutional issue of whether the First Amendment requires a showing of subjective intent to threaten in order to constitute a “true threat”—a category of speech unprotected by the First Amendment. Indeed, the Supreme Court has provided little guidance on this issue. The last time the Supreme Court applied the true threat doctrine was in Virginia v. Black, 538 U. S. 343, 359 (2003), where the Court defined true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Since Black, courts have split on whether the First Amendment requires proof of a person’s subjective intent to threaten, as required by the 9th Circuit, or whether a reasonable person standard is sufficient, as required by most circuits that have addressed this question.
Although the majority did not address the First Amendment issue, Justice Alito and Justice Thomas did. In line with his views on statutory construction, Justice Alito explained that recklessness would be sufficient under the First Amendment because it would provide “adequate breathing space” for protected speech. Justice Thomas traced the history of true threats and concluded that the First Amendment does not require any heightened mental state; if it did, Justice Thomas explained, true threats would be “one of the most protected categories of unprotected speech.” Neither Justice Alito nor Justice Thomas gave much credence to the concern that the true threats doctrine could be used to chill protected speech.
Ultimately, Elonis is far more notable for what it did not hold. With the widespread use of social media, what constitutes a true threat online remains an open question—and will continue to be a widely debated issue that the Supreme Court may eventually have to resolve.