Elonis v. United States: The Supreme Court Weighs In on Prosecuting Online Threats June 9, 2015,

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1 Elonis v. United States: The Supreme Court Weighs In on Prosecuting Online Threats June 9, 2015, Randall Eliason Professorial Lecturer in Law at The George Washington University Law School At Anthony Elonis' trial for making threatening posts on Facebook, the prosecutor told the jury it didn't matter what Elonis actually intended, as long as a reasonable person would perceive his statements as a true threat. In reversing Elonis' convictions last week, the Supreme Court held that in a prosecution for threats proof of the defendant's intent actually matters a great deal. In Elonis' case, that ended up spelling the difference between being a convicted felon and just being a jerk. Elonis was an active Facebook user, with hundreds of "friends" and posting about a wide variety of topics. In May of 2010 his wife left him, taking their two children with her. After she left, Elonis began posting compositions of his own. These were often in the form of rap lyrics, and were frequently crude, graphic and violent. He adopted a different Facebook user name, "Tone Dougie," to use as his alter-ego for these "rapper" posts. Along with the violent posts, Elonis frequently posted disclaimers saying they were merely "fictitious lyrics," were for "entertainment purposes only," or that he was simply exercising his First Amendment rights. He also regularly linked to things such as the Wikipedia entry on freedom of speech and other articles about the First Amendment. In October 2010, Elonis lost his job after his employer perceived one of Elonis' posts on Facebook to be a threat against another employee. After that, his Facebook posts became increasingly graphic and violent. One post about his wife read in part: There's one way to love ya but a thousand ways to kill ya And I'm not gonna rest until your body is a mess, Soaked in blood and dying from all the little cuts... In November 2010, based on the threatening posts, Elonis' wife obtained a protective order against him. A few days later, Elonis posted an almost word-for-word adaptation of a comedy sketch that he and his wife had watched together, in which a comedian explains it's illegal to say you want to kill the President but not illegal to explain that it's illegal to say that. The post read in part: Did you know that it's illegal for me to say I want to kill my wife? It's illegal.

2 It's indirect criminal contempt. It's one of the only sentences that I'm not allowed to say. Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife. I'm not actually saying it.... Elonis followed up this post with a statement that "Art is about pushing limits. I'm willing to go to jail for my constitutional rights. Are you?" On November 16, Elonis posted the following: That's it, I've had enough. I'm checking out and making a name for myself. Enough elementary schools in a ten mile radius To initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class. The only question is... which one? This post earned Elonis a visit from the FBI, during which he declined to be interviewed. After the agent left, Elonis posted another item on Facebook he titled "Little Agent Lady" in which he falsely claimed he had been wearing a bomb when the agent came to his door and fantasized about killing her: Took all the strength I had not to turn the bitch ghost Pull my knife, flick my wrist, and slit her throat... In all of these instances, Elonis posted only on his own Facebook wall. He was not Facebook friends with his wife, the FBI agent, or others who were the subjects of his posts, and he did not tag them. Elonis ultimately was indicted on five counts of felony threats. He testified at trial that his posts were "therapeutic" artistic expression that helped him deal with the emotional upheaval in his life, and that he never intended to threaten anyone. He claimed many of his posts emulated lyrics by rappers he admired; for example, he testified that his post about the school was based on an Eminem song, I'm Back, in which the rapper fantasized about participating in the Columbine shooting.

3 His wife testified that she took the Facebook threats seriously and that they made her very afraid for herself and her children. Other witnesses also testified they felt afraid and viewed the posts as serious threats. The trial court, relying on the rule in the majority of circuits at the time, told the jury they only needed to find that Elonis intended to make the statements and that a reasonable person, looking at the statements, would consider them to be a real threat. The judge rejected Elonis' request for an instruction that the jury had to find he acted with the purpose of placing his victims in fear. The jury convicted Elonis on four counts of threats, one each for threatening his wife, the police, the school, and the FBI agent. He was sentenced to 44 months in prison, which he served while his appeals were pending. The State of Mind Required for a Threats Prosecution The issue in Elonis was not whether threats on social media may ever be prosecuted. It's settled that "true threats" fall into the narrow category of speech not protected by the First Amendment, along with obscenity, defamation, and "fighting words" that incite violence. The issue was what the government has to prove about the defendant's state of mind to establish that the statements at issue were indeed "true threats." Elonis was convicted of violating 18 U.S.C. 875(c), which provides: Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. On its face the statute simply requires transmission of the threats and does not say anything about the defendant's state of mind. During the Supreme Court argument four possible standards emerged (in decreasing order of the level of proof required): 1) The defendant personally intended that the statements would place the target of his threats in fear. (The standard argued for by Elonis.) 2) The defendant knew that a reasonable person, looking at the statements, would be placed in fear of being harmed. 3) The defendant knowingly made the statements with a reckless disregard for whether the recipient would be placed in fear of being harmed. 4) The defendant knowingly made the statements, and regardless of what the defendant personally knew or intended about their effect, a reasonable person looking at those statements would think they were a serious expression of an intent

4 to harm another. (The standard adopted by the lower courts and most other courts, and argued for by the government.) The issue before the Supreme Court boiled down to which of these standards should be the law. Writing for the seven-member majority, Chief Justice Roberts noted that although no intent is specified in the statute, that does not mean intent is not required. It's an old criminal law principle that convictions generally require proof the defendant knew his conduct was blameworthy; crimes (as opposed to torts or other civil harms) require both a bad act (actus reus) and wrongful intent (mens rea). Put another way, a criminal conviction generally requires both an evil hand and an evil heart. Roberts discussed several of the Court's prior decisions where defendants engaged in a bad act (such as selling drug paraphernalia or distributing child pornography) but their criminal convictions were reversed because there was no proof they knew the critical facts that made their conduct illegal (that the products could actually be used to ingest drugs, or that the models in the pornography were actually underage). A defendant does not need to know that his conduct violates a particular statute the principle that ignorance of the law is no excuse still generally applies. But he does have to have knowledge of all of the facts that make the conduct unlawful. Turning to the threats statute, the Court noted that both sides agreed the defendant had to know he was making a communication, but "communicating something is not what makes the conduct wrongful.'" To prove the requisite intent, the government must show that the defendant actually knew not just that he made a communication, but that the communication contained a "threat." That means the defendant at a minimum had to know the statement would put a reasonable person in fear, because that is what makes a communication a threat as opposed to, for example, an insult or a compliment. Elonis, however, was convicted based not on what he personally knew, but based only on whether an objective reasonable person, looking at his posts, would have considered them to be threats. That, the Court said, is a negligence standard common in tort law, but generally not a basis for criminal liability. "Federal criminal liability," the Court noted, "generally does not turn solely on the results of an act without considering the defendant's mental state." As a result, Elonis' convictions could not stand. Concurring in part and dissenting in part, Justice Alito agreed that Elonis could not be convicted based solely on the reasonable person standard, but took the majority to task for failing to decide whether recklessness was sufficient to violate the statute. He argued it was irresponsible for the Court to leave lower courts uncertain as to what standard should apply. Justice Alito concluded that under general criminal law principles proof of recklessness should be sufficient to establish wrongful intent by the defendant, and that the Court should have said so.

5 Justice Thomas dissented. He too complained that the Court had rejected the general intent or negligence standard but had left nothing concrete in its place to guide the lower courts. He argued that the standard applied by the lower courts was correct and that Elonis' convictions should be upheld. Effect of the Elonis Opinion The Court's decision is actually quite narrow. Elonis had argued that the First Amendment required the government to prove he specifically intended to put his victims in fear. But the Court didn't reach the constitutional question at all, instead relying on the narrower ground of statutory interpretation. As Justices Alito and Thomas pointed out, the Court didn't clearly rule on what state of mind is sufficient to violate the threats statute. It simply held that the negligence standard under which Elonis was convicted was not enough. It is left to future courts and future cases to further flesh out the precise legal requirements under the statute. But despite the narrowness of the rationale, the decision is a welcome development. There's no doubt that Elonis' conduct was deplorable and troubling. But more troubling still would be the idea that the government could throw someone in jail based solely on what they wrote, without having to prove anything about their underlying state of mind. Although it was not a constitutional opinion, the case has strong First Amendment overtones. When it comes to online communications, it's particularly important to have legal standards that ensure protected speech does not end up being prosecuted. Things like s and Facebook posts suffer from an inability to convey nuance, tone, inflection, facial expression, body language all things that can be critical to determining a speaker's true meaning in face-to-face communication. In this world of online communication there is a lot of room for misunderstanding and misinterpretation. Most of us have had the experience of sending an or posting something that was intended to be sarcastic or funny but was perceived as serious, or vice-versa. Indeed, a whole world of "emoticons" has sprung up to help overcome this problem and associate emotion or attitude with the digital written word. Mere words on a cold page or on a screen cannot convey all of the nuance and subtlety that make up human communication. When it comes to the meaning of speech, context is everything. Violent rap lyrics that no one would perceive as a threat in the context of a stage performance could most definitely be a threat if whispered menacingly into the ear of another person. But a post on one's own Facebook wall is a semi-public statement that may be viewed and shared by many. Is that closer to a public performance, or to a menacing whisper? When it comes to Elonis' posts, it's hard to argue they have much redeeming social value. His claim that his posts were simply examples of artistic expression seems far-fetched. Nevertheless, the heart of the First Amendment is the protection of even speech that

6 many consider vile or offensive freedom of speech includes freedom for speech that most of us hate. It's important that the law leave some breathing room for controversial expression. Groups concerned about issues such as domestic violence had filed briefs expressing concern about the consequences of overturning Elonis' convictions. But the decision doesn't mean someone like Elonis may never be prosecuted. If the jury had been properly instructed about what they had to find concerning Elonis' mental state, they may well have convicted him anyway. Even now the government could choose to re-try him, although considering he already has served his sentence the government may conclude it is not a good use of resources. Elonis therefore is not a "get out of jail free" card for future stalkers and harassers. Proving intent or knowledge is not some kind of insurmountable hurdle; prosecutors do it all the time. As in any case, knowledge may be proven by circumstantial evidence, even if direct evidence is not available. And if a defendant tries to dress up his threats by claiming they are just "artistic expression," a jury is fully capable of assessing the credibility of that defense. Imposing a state of mind requirement isn't about condoning Elonis' reprehensible conduct, it's simply about strictly interpreting statutes that potentially criminalize speech. Elonis means that future threats prosecutions will be a bit more difficult, but that's not a bad thing. Given our First Amendment heritage and devotion to free expression, it's not too much to ask that the government prove some level of intent when seeking to send someone to jail solely for what they wrote. ###