SCOTUS reverses lower court decision on Elonis Facebook threat case. However, despite that fact, the Court didn’t give a lot of guidance on what the line is between protected speech and unprotected threats.
Anthony Elonis was found guilty of four counts of transmitting threats via Facebook. His posts took the form of free-form rap lyrics, which he asserted were therapeutic and protected forms of First Amendment speech. He used Eminem as an example, stating that the rapper produced similar wife-killing fantasies that were not construed as threats.
Elonis’ posts were fantasies of killing his estranged wife, shooting children at an elementary school and killing an FBI agent who had questioned him about it. His wife said she feared for her life and took out a restraining order.
SCOTUS looked to Elonis’ mens rea, or state of mind, specifically at his intent. Prosecutors at the lower courts argued during the trial that intent shouldn’t matter. At this point, I’ll pause to add that though it’s been awhile, I can still see the chalkboard in my Criminal Law class and my law prof’s two-foot-tall “INTENT” as we discussed necessary elements of criminal activity.
The prosecutors said the test should be whether the mythical “reasonable person” (if you’ve attended at least one law class in your life, you’ll understand the “mythical” part) would have been threatened by Elonis’ speech. While the Third Circuit agreed with the prosecutors, Chief Justice John Roberts said, “The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’ communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” Hello, mens rea. Nice to see you haven’t left the building.
The Chief Justice compared Elonis’ case to that of someone who commits a crime but is mistaken about the circumstances of the case. For example, taking spent shell casing from a government bombing range is a crime, but someone did it believing with good reason that the casings were abandoned and the court in that case found no criminal liability.
The ruling introduces a lot of grey into an already murky legal landscape. We’re back to “reasonableness” again. This highly subjective standard varies from person to person and, I would argue, from hour to hour for a given person. I have known people who have done what Elonis did, but I knew they would rather take a bullet themselves than actually fire one. Elonis’ wife obviously has a different (and understandable) standard.
The Court did not actually decide whether Elonis’ lyrics were threats. They merely said the standard applied by the lower court was incorrect and sent the case back down for re-trial.
It remains an interesting and confusing legal issue that may take some time to actually decide.