Case Summary and Outcome

The US Supreme Court ruled that the criminal offence of transmitting a communication with a threat to injury another person must include the ordinary criminal concept of intent. An individual had been charged with the crime of transmitting threatening communications related to Facebook posts in which he threatened his co-workers and ex-wife. The trial court instructed the jury to convict the individual if a reasonable person would have understood his communications as threatening irrespective of his actual intention. The Supreme Court reversed the trial court’s ruling on the grounds that this instruction failed to meet the ordinary criminal law requirement of intention – mens rea. The Court did not discuss the type of intention that is required in this specific offence and so did not rule on whether recklessness is sufficient for a conviction.

Facts

In May 2010, Anthony Elonis’s wife left him, taking their two children. Soon after, Elonis began posting violent posts on his Facebook page, some styled as rap lyrics, and later changed his name on Facebook to his rap alter ego, Tone Dougie. He was charged with five counts of violating federal anti-threat statute 18 U.S.C. §875(c) for threatening his estranged wife, co-workers, a kindergarten class, the local police and an FBI agent.

Section 18 U.S.C. §875(c) makes it a crime to transmit, “in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” and is punishable by up to five years’ imprisonment.

The charges related to a number of different posts. Some examples were that as an amusement park employee, he posted a photograph of him posing with a toy knife against a co-worker’s neck with the caption, “I wish”; an  “adaption of a satirical sketch” where he said that it may be illegal to say he wants to kill his wife but not to explain that it is illegal to say that; and, directed at his estranged wife, that “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” [pp. 3 and 7] The communications were sometimes interspersed with disclaimers, for example to the effect that the lyrics were “fictitious” and had no “resemblance to real persons”. The communications in question had been posted on Elonis’s Facebook page and it was accepted that they that represented “true threats”, namely a serious expression of an intention, in this case to physically injure another person. It was also established that true threats are not protected by the First Amendment.

At trial, the judge instructed the jury that they should convict Elonis if, in addition to his having intended to make the communications and understanding their content, a reasonable person would view them as threats to injure. As part of his defence, Elonis claimed that he was an aspiring rap artist and that his comments were a form of artistic expression, and also that they were a form of therapy and cathartic for him. He also argued that he should not be convicted absent a specific intent to threaten anyone, which he had not had when he posted the communications. Elonis was convicted at trial on four of the five charges, excluding the one against co-workers, and sentenced to three years and eight months’ imprisonment and three years of supervised release.

On appeal, the United States Court of Appeals for the Third Circuit affirmed his conviction and the case was then appealed to the United States Supreme Court.

Decision Overview

Judges Roberts CJ, Scalia, Kennedy, Ginsburg, Breyer, Sotomayor and Kagan JJ delivered the majority decision of the Supreme Court. Judges Alito and Thomas delivered separate dissenting judgments. The central issue for the Court’s determination was what form of intention – the criminal law requirement of  mens rea – was required for a conviction of the Section 18 U.S.C. §875(c) crime

All of the judgments accepted that even though the section 18 U.S.C. §875(c) is silent on the form of mens rea, some form of mens rea must be required.

The majority held that a crucial element separating innocent from culpable content here was the threatening nature of the communications and that the mental state requirement must therefore relate to that. In light of that conclusion, liability based on whether a reasonable person would consider the statements to represent threats was a negligence standard which should not be incorporated into the criminal law absent overriding reasons, for example that the text of the statute made it clear that that was what was intended, which was not the case here. Simply understanding the “contents and context” of the communication, that is, the meaning of the words, and not its character was not enough. [p. 15]

Accordingly, the majority found that the instruction to the jury had been wrong, reversed the decision of the Court of Appeals for the Third Circuit and “remanded [the matter] for further proceedings consistent with this opinion”.

The majority noted that the nature of their ruling made it unnecessary to consider the First Amendment, and they specifically refused to determine whether, in this context, recklessness was sufficient to establish culpability under the provision on the basis that this question had not been argued properly as part of the case and the Court of Appeals had not considered that issue.

Justice Alito issued a separate opinion concurring in part and dissenting in part. He agreed with the majority decision, as far as it went, but felt that it was incumbent upon the Supreme Court to clarify what mental state was required for liability under the provision given that lawyers and judges were bound to seek such direction. Negligence is present where the defendant “should have been aware” of the risk that the communications would be understood as threats, recklessness applies “when a person disregards a risk of harm of which he is aware”. [p. 5] Judge Alito found that this was the next level of mens rea after negligence and was as far as the Court could go through interpretation and without getting into amendment (i.e. legislating). He noted that there could be no dispute that recklessness regarding a risk of harm is wrongful conduct and that this was enough in the present case. He recognized that the recklessness standard has also been applied in the context of both civil and criminal defamation and could even justify the death penalty, and also satisfied the standards of the First Amendment, which does not protect real threats. Judge Alito stated that while some “breathing space” for protected speech was necessary, this was provided by the narrow definition of a real threat combined with the requirement of recklessness, which also passed muster in the defamation context in relation to falsity. [p. 8] Justice Alito was the only judge who referred to social media as the vehicle for distribution of these communications, noting that songs performed for an audience or sold in recorded form could not be compared to statements disseminated via social media, which was “among the most favored weapons of domestic abusers”. [p. 7]

Justice Thomas issued a dissenting opinion, upholding the reasonable person standard applied by the trial court and Court of Appeals for the Third Circuit. He maintained that the common law favoured general intent (simple intent to commit the prohibited acts), which in this case was met if the accused understood the “contents and context” of the communication, and that courts should not build in additional mens rea requirements without compelling reasons – which were not present here. On the First Amendment issue, Justice Thomas examined earlier jurisprudence to support the idea that this standard was constitutional, including cases addressing “fighting words”, which did not require an intent to provoke a violent reaction. Justice Thomas also noted that true threats are unprotected speech.