Supreme Court Reverses Conviction in Elonis v. United States, Avoids Answering First Amendment Question

The US Supreme Court has overturned the conviction of Anthony Elonis, a Pennsylvania man also known by his nom de rap Tone Dougie, for violating the federal criminal threat statute. A jury had convicted Elonis based on the rap-lyrics-style speech he posted on his Facebook page, which are cited in the court's opinion, about his ex-wife. The jury, following instructions from the trial judge, had found that a reasonable person would feel threatened by the posts. However, the Supreme Court reversed, holding that the statute, 18 U.S.C. § 875(c), requires more and that the jury should also have considered what Elonis actually thought about the violent words he wrote on Facebook. The Court has now made it a little more difficult for the government to prosecute people based on speech that is not really meant to convey a threat or that a person wouldn’t suspect would be perceived as a threat.

As Chief Justice John Roberts, writing for himself and six other justices, explained:

Elonis’s conviction . . . was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is . . . inconsistent with “the conventional requirement for criminal conduct— awareness of some wrongdoing.” Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks— “reduces culpability on the all-important element of the crime to negligence . . . .” Under these principles, “what [Elonis] thinks” does matter.

The Supreme Court, however, did not explain further which of Elonis’ thoughts must be considered. So it is unclear whether the prosecution must now prove that Elonis actually wanted to threaten his ex-wife (an "intent" standard), or whether it would be enough to prove only that he was aware of the risk that his ex-wife would feel threatened, but acted anyway (a “recklessness” standard). That decision was left to the trial court to decide, should Elonis be retried.

Because it decided that Elonis's jury was not properly instructed about the meaning of the federal criminal threat statute, the Supreme Court did not decide whether Elonis's speech was protected by the First Amendment. A category of speech called "true threats" are not afforded those protections. Elonis would thus be protected by First Amendment unless his speech was deemed a "true threat." Whether the speaker's state of mind determines whether speech is a true threat is a unresolved legal question. Two federal appellate courts define true threats as only those that the speaker intends to be threatening. The remaining federal appellate courts that have considered the issue define true threats without reference to the speaker's state of mind at all, instead looking only at whether a reasonable person hearing the words would feel threatened. None of these courts have adopted the "recklessness" standard. When the Supreme Court decided to review the Elonis case, many court-watchers thought the high court had finally decided to answer this question. And indeed, it was on this question that EFF joined an amicus brief filed by the Student Press Law Center and the PEN American Center to explain why the unique nature of the Internet and the First Amendment requires the government prove a person actually meant to make a threat before he can be prosecuted.

So many now see the Elonis decision as anti-climactic. But the decision is still an important victory for free speech since section 875 is widely used to prosecute speakers on the Internet.

Decisions like this, where a majority of the court scrupulously avoids confronting a difficult constitutional question, usually indicate that a majority of the court could not agree how to answer that question. That means that it is unlikely that five of the justices were ready to require prosecutors to prove an intent to threaten, and at least some of them favored the recklessness standard. So rather than issue several highly fractured opinions that would offer little guidance to the lower courts, the Chief Justice wrote an opinion that reflected the totality of what the seven justices here could agree on.

Two justices did not join the Chief Justice’s opinion. Justice Alito agreed with the decision but wrote that the court should have adopted the recklessness standard. Justice Thomas dissented, believing that Elonis’ conviction should have been upheld.