Elonis v. United States

Elonis v. United States, 575 U.S. ___ (2015), was a United States Supreme Court case concerning whether conviction of threatening another person over interstate lines (under 18 U.S.C. § 875(c)) requires proof of subjective intent to threaten, or whether it is enough to show that a “reasonable person” would regard the statement as threatening.^[1] In controversy is the fact the purported threats consist of violent rap lyrics written by Anthony Douglas Elonis and posted to Facebook under a pseudonym.^[2] The ACLU filed an amicus brief in support of the petitioner.^[1] This is the first time the Court has heard a case considering true threats and the limits of speech on social media.^[3]

Background

Elonis was in the process of divorce and made a number of public Facebook posts.

He "posted the script of a sketch" comedy sketch by The Whitest Kids U' Know, which originally referenced saying "I want to kill the President of the United States", replacing the president with his wife:

Elonis ended the post with the statement, "Art is about pushing limits. I'm willing to go to jail for my constitutional rights. Are you?"

A week later, Elonis posted about local law enforcement and a kindergarten class, which caught the attention of the Federal Bureau of Investigation, after which he wrote a post on Facebook about one of the agents who visited him:

concluding..

These actions led to Elonis' indictment by a grand jury on five counts of threats to park employees and visitors, local law enforcement, his estranged wife, an FBI agent, and a kindergarten class, relayed through interstate communication.

At the district court he moved to dismiss the indictment for failing to allege that he had intended to threaten anyone. His motion was denied. He requested a jury instruction that "the government must prove that he intended to communicate a true threat." which was also denied.

He was convicted on the last four of the five counts. He was sentenced to 44 months in prison, and three years supervised release.

He appealed unsuccessfully to the circuit court of appeals, renewing his challenge to the jury instructions.

He appealed to the Supreme Court based on lack of any attempt to show intent to threaten and on First Amendment rights.^[2][3][4][5]

Decision

On June 1, 2015, the Supreme Court reversed Elonis' conviction in a 7-2 decision. Chief Justice John G. Roberts wrote for a seven-justice majority including the three female justices, while Samuel Alito authored an opinion concurring in part and dissenting in part and Clarence Thomas authored a dissenting opinion. The finding of the circuit court was reversed and the matter remanded.

Majority opinion

The majority opinion, written by Roberts, did not rule on First Amendment matters, nor on the question of whether recklessness was sufficient mens rea to show intent. It did rule that mens rea was required to prove the commission of a crime under §875(c).

Importantly Elonis had held this view and had objected at every stage of previous proceedings, therefore the court was able to address the matter.

The government contended that the presence of the words "intent to extort" in §875(b) and §875(d) implied that the absence in §875(c) was constructive. The court disagreed, holding that the absence of the language in §875(c) is because that the section was intended to have a broader scope than threats relating to extortion.

The opinion drew on many Supreme Court cases where it had been held, in criminal law, that mens rea was required, though not mentioned explicitly in statute.

Consequently the court found for Elonis.

Alito's concurrence

Samuel Alito, concurring in part and dissenting in part, opined that while agreeing that mens rea was required and specifically that showing negligence was not sufficient, the court should have ruled on the question of recklessness, further opining that recklessness was sufficient to show a crime under this provision, on the basis that going further would amount to amending the statute, rather than interpreting it. Since Elonis explicitly argued that recklessness was not sufficient, Alito said:

I would therefore remand for the Third Circuit to determine if Elonis’s failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction.

The Third Circuit should also have the opportunity to consider whether the conviction can be upheld on harmless-error grounds.

Alito also addressed the First Amendment question, elided by the majority opinion. Alito held that "lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person." Whereas "Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously."

Thomas's dissent

Clarence Thomas, dissenting, wrote that discarding the "general intent" standard (supported by nine of eleven circuit courts) without replacing it with a clearer standard than simply "General intent is not sufficient".

Thomas argues "there is no historical practice requiring more than general intent when a statute regulates speech."

Thomas cites Rosen, arguing that general intent was sufficient in this case. However the majority opinion offers refutation, in that Rosen turned on ignorance of the law, i.e. knowledge as to whether material was legally obscene, not on whether it was intended to be obscene. He also supports the government's claim that the presence of "intent to extort" language in the adjacent §875(b), he does not address the majority's reasoning on this language.

Thomas uses precedent, notably state precedent, and eighteenth century English precedent based on other but similar and arguably influencing legislation to support his "general intent" claim. Thomas also draws a parallel with general intent in tort. While he seeks to address the First Amendment issues, he never strays far from "general intent".

Footnotes