I rarely agree with Supreme Court Justice Clarence Thomas. But in his dissent in Elonis v. U.S., decided June 1, I found this pair of lines that had me nodding “yes:”
“Our job is to decide questions, not create them. Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule – any clear rule.”
The clear rule the Court doesn’t really provide is the answer to this question: If someone posts comments online that appear to be “true threats,” does he have to intend his comments as threats to be convicted of violating federal law? Or is it enough that he realizes a “reasonable person” would see those words as threats?
Chief Justice John Roberts, writing for the majority, answered part of the question. A defendant cannot be convicted of making “true threats” simply because a “reasonable person” would see his words as threats.
And if the words are seen as “true threats,” they receive no First Amendment protection, Justice Samuel Alito noted in his separate opinion.
So where is that line between ugly words and true threats? Judges at all levels have been left to wonder. In an era where trolls lurk everywhere comments are allowed, I suspect it won’t be long before the question returns.
At the center of the current case is Anthony Elonis. Shortly after his wife left him, Elonis began posting what he called “rap lyrics” on Facebook. The postings included violent images seemingly addressed to his ex-wife, his co-workers, a kindergarten class and law enforcement officers.
Elonis claimed his writing was “for me. My writing is therapeutic.” But those he seemingly targeted felt otherwise. His ex-wife took her fears to court and was granted a protection-from-abuse order. She was then greeted by this post, again on Facebook:
“Fold up your [order] and put it in your pocket. Is it thick enough to stop a bullet? Try to enforce an Order that was improperly granted in the first place … And if worse comes to worse, I’ve got enough explosives to take care of the State Police and the Sheriff’s Department.”
At trial, Elonis’ attorney argued the government had to prove he intended the words to be threats. Since they could not (and, indeed, weren’t claiming intent in the indictment), the case should be dismissed, the defense said.
The trial court rejected that, citing precedent in the Third Circuit Court of Appeals. (Those rulings are binding in Pennsylvania, where Elonis lives). That precedent, the court said, required only that Elonis “intentionally made the communication, not that he intended to make a threat.” The instructions to the jury told them to consider whether a “reasonable person” would interpret the comments as threats. On appeal, the Third Circuit upheld Elonis’ conviction.
Eight justices (including Justice Alito in this part) acknowledge that the law under which Elonis was charged doesn’t specify what level of intent is required for conviction. But the Third Circuit got it wrong, the eight said. The level, not specified in the majority opinion, has to be something more than what a “reasonable person” would perceive.
From the majority opinion:
“Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with ‘the conventional requirement for criminal conduct – awareness of some wrongdoing.’ … Under these principles, ‘what [Elonis] thinks’ does matter.”
As is their custom, justices chose to decide the case without reaching any Constitutional issues. Instead, the majority and the two separate opinions centered on how to read the statute under which Elonis was charged. Hints of that approach surfaced at oral argument, when the justices spent all their time asking about the definition of a “true threat.” (For those who are interested, you can listen to the oral argument here.)
Justices Alito and Thomas both argued the Court should have helped answer that definition question for lower court justices. Justice Alito would have returned the case to the Third Circuit, in part to decide whether Elonis could be convicted under a standard of recklessness. He would make that the standard here, asking if the words used could reasonably be read as “an expression of an intent to harm another” and if the defendant was “at least reckless” as to whether his words could be read that way. This would echo long-standing court precedent that allows media defendants to be found liable in defamation cases if the person suing could prove “reckless disregard” for the truth.
(The majority refused to decide the recklessness question because it was not argued before the Court. Justice Alito dismissed that objection, noting the Court has in the past asked for additional briefing and argument in some cases.)
Justice Thomas would have upheld the conviction, noting a “defendant like Elonis … who admits that he ‘knew that what [he] was saying was violent’ but supposedly ‘just wanted to express [him]self acted with the general intent required … even if he did not know that a jury would conclude that his communication constituted a ‘threat’ as a matter of law.”
Law, as I’ve told many students, is frequently an exercise in deciding where to draw the line between acceptable and not-acceptable. That’s especially true in cases involving speech.
Justice Alito sees a danger in leaving that line murky moving forward:
“If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free.”
And there lies a major danger of the Elonis semi-decision. Trolling and cyberbullying and, let’s face it, online threats will not go away. How do we sort out when those words cross the line into an exception to the protection given by the First Amendment?
Defending extremely unpopular speech isn’t unusual for the Court – consider, for example, Snyder v. Phelps. There, Justice Roberts upheld the Westboro Baptist Church’s right to demonstrate and explained clearly why that majority felt the speech was protected.
I’m glad the Court didn’t settle for “any clear rule,” especially since I believe Justice Thomas sets that line in the wrong place. But I agree with Justices Thomas and Alito that the Court could and should have provided some additional guidance to lower court justices who, as Justice Alito wrote, will see these types of cases and have to decide. The next Elonis case is likely somewhere in the legal system now, working its way to the Supreme Court.
Carole McNall is an assistant professor of journalism and mass communication at St. Bonaventure University and is licensed to practice law in the State of New York.