Elonis: Threshold of Proof Required For Threats on Social Media

The U.S. Supreme Court, in Elonis v. United States (Available Here), recently tackled an important threshold question of interpreting the Federal “threat” statute, 18.U.S.C. §875(c) and its interplay with the First Amendment. Unfortunately, the Court punted on the First Amendment concept and refused to address any of its implications. The background of this case concerns Anthony Douglas Elonis using Facebook to post self-styled rap lyrics, which included violent imagery and language. These posts were often interspersed with disclaimers like “fictitious” and that they did not have any “resemblence to real persons.” Despite these disclaimers, many of his co-workers, friends and his ex-wife believed these were genuine threats. The FBI investigated him and ultimately a grand jury indicted him for making threats to injure patrons and employees of his work, his ex-wife, police officers and a kindergarten class, in violation of 18.U.S.C. §875(c) .
18 U.S.C. §875(c) holds that an individual who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” is guilty of a felony and faces up to five years imprisonment. The statute does not however, specify that the Defendant have any specific mental state, or that he must intend that the communication is a threat. This was the issue that was before the Court, since the district court relied on a jury instruction that Elonis could be found guilty if a reasonable person would foresee that the statement would be interpreted as a threat. The Third Circuit Court of Appeals affirmed the district court findings, holding that the statute only required the intent to communicate words which a party would understand, and that a reasonable person would view as a threat.
The Supreme Court acknowledged that ignorance of the law is no excuse, and that a defendant need not be required to know of the conduct was illegal before being found guilty. The Court explained that when reviewing federal criminal statutes that are silent on the required mental state, we must read into the statute “only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” The Court noted that 18 U.S.C. §875(c) required proof that a communication was transmitted and tat it contained a threat and that everyone agreed the Defendant must know he was transmitting a communication. The mental state requirement portion must apply to the fact the communication contained a threat.
The Court declined to review whether recklessness would be a sufficient threshold, noting that it was not briefed. Instead the Court focused on negligence, namely that it is not sufficient to support a conviction. The Court resolves the following finding: “There is no dispute that the mental state requirement in Section 875( c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.”
Under that finding, the Court then ignored its opportunity to have a discussion of the First Amendment implications, noting “ [g]iven our disposition, it is not necessary to consider any First Amendment issues.” In the separate concurring/dissenting opinion by Justice Alito, there was a discussion of First Amendment issues. He notes that a communication containing a threat may include other protectable statements of value, but that it would not justify constitutional protection for the threat itself. Elonis tried to claim it was protectable as art, but Alito claimed that this would improperly grant a license to anyone clever enough to claim their threat was merely rap lyrics, or parody or something similar.

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