06/01/2015 01:38 pm ET Updated Jun 01, 2016

Citing Wrong Standard, Supreme Court Tosses Facebook Threat Conviction

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Intent, Not First Amendment, at Issue

In Elonis v. United States, a widely watched case about the criminal prosecution of threats over social media, the United States Supreme Court threw out the conviction of a defendant who wrote violent posts on his Facebook page. The opinion, authored by Chief Justice John Roberts, and joined by all others except Justice Clarence Thomas, sidestepped issues of both the Internet and the First Amendment, focusing instead on criminal intent.

In general, most criminal laws punish a harmful act coupled with a culpable mindset. This intent refers to a certain specified level of awareness known as a required mental state. In descending order of awareness, each criminal statute invokes a standard that, inter alia, punish willfulness, purpose or knowledge (sometimes by themselves referred to as intent), as well as recklessness or negligence.

Previously the Supreme Court has held that genuine threats are, indeed, punishable by criminal laws and are not protected by the First Amendment's guarantee of free expression. The Supreme Court in 1997 in Reno v. ACLU established high levels of protection for online speech. They found there is "no basis for qualifying the level of First Amendment" guarantees regarding the Internet. In today's decision Chief Justice Roberts wholly dismissed speech analysis, writing, "it is unnecessary to consider any First Amendment issues," arguably because real threats can be punished without constitutional consequence, irrespective of the medium used.

Violent Imagery

The applicable federal statute punishes anyone 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" with a felony of up to five years imprisonment. Anthony Elonis posted violent rap lyrics on a Facebook page under the name "Tone Dougie" along with disclaimers and statements describing the posts as personally therapeutic. His wife of seven years had recently left him, along with their two children. Elonis was indicted on various counts for making threats to coworkers, "his estranged wife, police officers, a kindergarten class, and an FBI agent, all in violation of 18 U. S. C. §875(c)." One post recounted in the Court's decision entitled "Little Agent Lady" was made after Elonis was questioned by FBI agents:

You know your s***'s ridiculous
when you have the FBI knockin' at yo' door
Little Agent lady stood so close
Took all the strength I had not to turn the b**** ghost Pull my knife, flick my wrist, and slit her throat Leave her bleedin' from her jugular in the arms of her partner
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb

The Defendant's Purpose in Posting Is Key

The crux of this case was which mental state a defendant must possess for conviction under the applicable Federal Statute, 18 USC 875, which criminalizes communicating threats. The case did not address contractual terms of service provisions which companies can use to bounce offending speech off commercial social networking sites, nor did it address possible civil lawsuits by those intimidated. The particular criminal statute at issue was silent on the exact mental state, or the required level of awareness a defendant must have for conviction. The High Court inserted its own standard, invoking previous case law for support.

Most criminal law punishes purposeful and knowing conduct directed toward creating a harm. However, some criminal statutes instead cover reckless or negligently created harms that were unintended as well. The justices found that the standard applied to Elonis was not rigorous enough for a criminal conviction. That rejected standard required only that a jury focus on what a reasonable reader would conclude, rather than on the poster's intent. The Court, thus, limited the law's application to a defendant who "transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat."

The easier reasonable person standard, while often used in civil cases, was rejected because the criminal law leans to instances of purpose or knowledgeable mindsets for convictions. The Court concluded:

...Elonis's conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis's 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. That understanding "took deep and early root in American soil" and Congress left it intact here: Under Section 875(c), "wrongdoing must be conscious to be criminal."

Incomplete Ruling Criticized

The Court's decision today explicitly left unanswered one key question that was the basis for a vigorous partial dissent by Justice Sam Alito. If a defendant acts recklessly and "consciously disregards the risk that the communication transmitted will be interpreted as a true threat," is that enough for a conviction under 18 USC 875 (c)? The Supreme Court will have to wait until another term to resolve that issue. In the meantime, trial courts are left with the possibility of erroneous jury instructions and wrongful convictions if they apply a reckless standard, which now rests in limbo for criminal cases brought under federal threat law.