Today the United States Supreme Court released its highly-anticipated decision in Elonis v. United States. Many commentators hoped that Elonis would help clarify the line between protected speech and "true threats." They were left disappointed and in some cases confused.

Wait. What's a true threat?

You again.

Just answer the question, lawboy.

Okay. Not every threat is illegal; some threats are protected by the First Amendment. Threats that everybody understands to be a joke, or rhetoric, are protected. So if I say "I'm going to explain the tax code to you until you bleed out the ears," that's protected. But "true threats" are not protected. "True threats" are a class of threats that reasonable people will take as a serious expression of intent to do harm.

Unfortunately, the line between protected rhetoric and true threats is not always clear.

Seems pretty basic. Hasn't the Supreme Court explained this before?

Sort of. In 1969 the Supreme Court decided Watts v. United States, which involved a kid facing being drafted to Vietnam. He said this to a group of people:

"They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J."

He was prosecuted for threatening the President. But the Supreme Court reversed his conviction, saying that nobody would take his statement as anything but political hyperbole:

We agree with petitioner that his only offense here was "a kind of very crude offensive method of stating a political opposition to the President." Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.

So didn't that resolve the issue of what true threats are?

No, not entirely. It left open what the government has to prove about the defendant's mental state to convict them of making a threat under various threat statutes.

It's clear that the government has to prove that a threat is objectively "true." That is, the government has to prove that a reasonable person would interpret the threat, in the context in which it was uttered, as an actual expression of intent to do harm.

What's less clear is what subjective intent is required on the part of the threatener. Must a defendant subjectively intend that his or her audience take the threat seriously? Or must the defendant only intend the act — that is, intend to utter the words which reasonable people will interpret as a threat? Or is it something in between?

How does Elonis come into this?

Anthony Douglas Elonis said some seriously scary things about his ex-wife, his employers, school shootings, and law enforcement on Facebook. The feds prosecuted him under Title 18, United States Code, Section 875(c), which makes it a federal crime to transmit a threat in interstate commerce. For these purposes, transmitting in interstate commerce includes putting it on the internet.

Elonis' defense was that he was a rapper, a word-artist, a bloviator, not a threatener. He asked the trial judge to tell the jury that they had to find that he had intent to threaten. The trial judge refused, and instead instructed the jury on the prevailing standard:

“A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.”

Elonis was convicted, and appealed, claiming that both Section 875(c) and the First Amendment require that the government prove that he intended to threaten, or at least was reckless about whether his words would be taken as threats. The Court of Appeals rejected his arguments, but the Supreme Court took the case.

So what did the Supreme Court do?

Screw everything up.

Wut

The Supreme Court could have ruled on just Section 875(c) — it could have just said "this statute requires proof of subjective intent." It could have gone further and ruled on the First Amendment, saying "the First Amendment requires subjective intent to prove a true threat" or that the First Amendment doesn't require that.

Instead, seven justices ruled that Section 875(c) requires the government to prove something more than what it did, but not exactly what.

That does not sound particularly helpful.

It's not. Most federal circuits had interpreted Section 875(c) to require only an objective showing — that a reasonable perrson would take the statement as a threat. Two circuits had required a subjective standard. That was the split in authority facing the Court, ripe to be resolved.

The Court noted that Section 875(c) doesn't have a plain intent requirement in its text, and so turned to a thicket of rules and precedents about how federal courts treat criminal statutes that don't have explicit intent requirements. In order to separate innocent conduct from bad behavior, federal courts prefer to read a criminal statute to require scienter — that is, some level of wrongful intent. "Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state," the opinion says.

So, the objective test — which merely requires that a threatener intentionally make a statement which a reasonable person would take as a threat — isn't enough. So must a threatener intend that the statement be taken as a threat, or know that it will be? Or is it enough that the threatener is reckless — that the threatener consciously disregards the risk that the threat will be taken literally?

The Court refused to say, in part because the parties didn't brief the issue. Therefore, we don't know.

So now a crucial element of Section 875(c), the federal threats statute, is an open question?

Yes. Litigants everywhere will start arguing over it. Unless and until the Court clarifies that recklessness is enough, cautious prosecutors will probably seek to prove intent to threaten, so convictions won't be vulnerable.

Did the Court base this ruling on the First Amendment?

No, with a but.

The Court said that it wasn't reaching the First Amendment question — that it was only deciding as a matter of federal statutory interpretation.

But you can expect that the Court's discussion of the intent requirement will be cited in First Amendment arguments. If it's important to separate innocent intent from bad intent, defendants will argue, then it's especially important when free speech is at stake.

So what impact will Elonis have?

First, it will raise the prosecution's burden in pending and future Section 875(c) prosecutions.

Second, people previously convicted under Section 875(c) will challenge their convictions. Whether a defendant can retroactively challenge a past conviction based on a new statutory interpretation is determined by [several thousand very boring words omitted.]

Third, the government and Section 875(c) defendants will vigorously litigate whether the government need only prove recklessness (that is, conscious disregard of the risk that people will interpret the threat as sincere) or most prove intent that the threat will be taken seriously or knowledge that it will be.

Fourth, people charged under state threat statutes — and other federal statutes — will start to argue that the government must prove subjective intent in those cases as well. Some statutes already require that; some don't. This will throw true threats law into flux.

Is that a strong argument?

Meh. I could argue it both ways. On the one hand the Supreme Court pointedly avoided talking about free speech or the First Amendment in its interpretation of Section 875(c). On the other hand, in analyzing the statute, the court said that the defendant's intent or knowledge in uttering the words is “the crucial element separating legal innocence from wrongful conduct." Because courts are already very concerned with laws clearly stating what speech is prohibited and what is allowed, that may be wrapped into a First Amendment argument. Notably, the dissents suggest that the distinction has First Amendment significance.

What did the dissenters say?

Justice Alito thinks that the Court should have ruled on whether recklessness is enough, and says that the Court just confused everyone by not addressing that point. Justice Alito also thinks that the First Amendment would permit a recklessness standard.

Justice Thomas also complains that the Court has thrown out the majority rule and left nothing in its place. He thinks that the First Amendment and Section 875(c) require only the objective test.

What to the commentators think?

Orin Kerr has a characteristically thoughtful post arguing that the Court made the right call in not deciding more than it absolutely had to.

Do you think that the subjective test makes it too difficult to prosecute threateners?

Not in general, no.

The higher intent requirement is probably most significant for the non-neurotypical — for people without a grasp of how their words are interpreted. But in general, jurors tend to believe that people intend the natural consequences of their actions. There's even an instruction courts sometimes give telling jurors that they may, if they want, presume that a defendant intends the natural and probable consequences of their actions. Moreover, jurors have an easier time empathizing with people who make a threat than with people who are engaging in some sort of performance art.

So, what's the bottom line?

To convict someone of interstate threats under Section 875(c), the feds must now prove up the defendant's subjective intent, not just how the audience will subjectively interpret the threats. It remains unclear whether the First Amendment requires proof of subjective intent, but the opinion will encourage further litigation on that question.

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