The issue before the Supreme Court boiled down to which of these standards should be the law.
Writing for the seven-member majority, Chief Justice Roberts noted that although no intent is specified in the statute, that does not mean intent is not required. It’s an old criminal law principle that convictions generally require proof the defendant knew his conduct was blameworthy; crimes (as opposed to torts or other civil harms) require both a bad act (actus reus) and wrongful intent (mens rea). Put another way, a criminal conviction generally requires both an evil hand and an evil heart.
Roberts discussed several of the Court’s prior decisions where defendants engaged in a bad act (such as selling drug paraphernalia or distributing child pornography) but their criminal convictions were reversed because there was no proof they knew the critical facts that made their conduct illegal (that the products could actually be used to ingest drugs, or that the models in the pornography were actually underage). A defendant does not need to know that his conduct violates a particular statute – the principle that ignorance of the law is no excuse still generally applies. But he does have to have knowledge of all of the facts that make the conduct unlawful.
Turning to the threats statute, the Court noted that both sides agreed the defendant had to know he was making a communication, but “communicating something is not what makes the conduct ‘wrongful.’” To prove the requisite intent, the government must show that the defendant actually knew not just that he made a communication, but that the communication contained a “threat.” That means the defendant at a minimum had to know the statement would put a reasonable person in fear, because that is what makes a communication a threat as opposed to, for example, an insult or a compliment.
Elonis, however, was convicted based not on what he personally knew, but based only on whether an objective reasonable person, looking at his posts, would have considered them to be threats. That, the Court said, is a negligence standard – common in tort law, but generally not a basis for criminal liability. “Federal criminal liability,” the Court noted, “generally does not turn solely on the results of an act without considering the defendant’s mental state.” As a result, Elonis’ convictions could not stand.
Concurring in part and dissenting in part, Justice Alito agreed that Elonis could not be convicted based solely on the reasonable person standard, but took the majority to task for failing to decide whether recklessness was sufficient to violate the statute. He argued it was irresponsible for the Court to leave lower courts uncertain as to what standard should apply. Justice Alito concluded that under general criminal law principles proof of recklessness should be sufficient to establish wrongful intent by the defendant, and that the Court should have said so.
Justice Thomas dissented. He too complained that the Court had rejected the general intent or negligence standard but had left nothing concrete in its place to guide the lower courts. He argued that the standard applied by the lower courts was correct and that Elonis’ convictions should be upheld.
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Effect of the Elonis Opinion
The Court’s decision is actually quite narrow. Elonis had argued that the First Amendment required the government to prove he specifically intended to put his victims in fear. But the Court didn’t reach the constitutional question at all, instead relying on the narrower ground of statutory interpretation.
As Justices Alito and Thomas pointed out, the Court didn’t clearly rule on what state of mind is sufficient to violate the threats statute. It simply held that the negligence standard under which Elonis was convicted was not enough. It is left to future courts and future cases to further flesh out the precise legal requirements under the statute.
But despite the narrowness of the rationale, the decision is a welcome development. There’s no doubt that Elonis’ conduct was deplorable and troubling. But more troubling still would be the idea that the government could throw someone in jail based only on something they wrote, without having to prove anything about their underlying state of mind.
Although it was not a constitutional opinion, the case has strong First Amendment overtones. When it comes to online communications, it’s particularly important to have legal standards that ensure protected speech does not end up being prosecuted. Things like e-mails and Facebook posts suffer from an inability to convey nuance, tone, inflection, facial expression, body language – all things that can be critical to determining a speaker’s true meaning in face-to-face communication.
In this world of online communication there is a lot of room for misunderstanding and misinterpretation. Most of us have had the experience of sending an e-mail or posting something that was intended to be sarcastic or funny but was perceived as serious, or vice-versa. Indeed, a whole world of “emoticons” has sprung up to help overcome this problem and associate emotion or attitude with the digital written word. Mere words on a cold page—or on a screen—cannot convey all of the nuance and subtlety that make up human communication.
When it comes to the meaning of speech, context is everything. Violent rap lyrics that no one would perceive as a threat in the context of a stage performance could most definitely be a threat if whispered menacingly into the ear of another person. But a post on one’s own Facebook wall is a semi-public statement that may be viewed and shared by many. Is that closer to a public performance, or to a menacing whisper?
When it comes to Elonis’ posts, it’s hard to argue they have much redeeming social value. His claim that his posts were simply examples of artistic expression seems far-fetched. Nevertheless, the heart of the First Amendment is the protection of even speech that many consider vile or offensive – freedom of speech includes freedom for speech that most of us hate. It’s important that the law leave some breathing room for controversial expression.
Groups concerned about issues such as domestic violence had filed briefs expressing concern about the consequences of overturning Elonis’ convictions. But the decision doesn’t mean someone like Elonis may never be prosecuted. If the jury had been properly instructed about what they had to find concerning Elonis’ mental state, they may well have convicted him anyway. Even now the government could choose to re-try him, although considering he already has served his sentence the government may conclude it is not a good use of resources.
Elonis therefore is not a “get out of jail free” card for future stalkers and harassers. Proving intent or knowledge is not some kind of insurmountable hurdle; prosecutors do it all the time. As in any case, knowledge may be proven by circumstantial evidence, even if direct evidence is not available. And if a defendant tries to dress up his threats by claiming they are just “artistic expression,” a jury is fully capable of assessing the credibility of that defense.
Imposing a state of mind requirement isn’t about condoning Elonis’ reprehensible conduct, it’s simply about strictly interpreting statutes that potentially criminalize speech. Elonis means that future threats prosecutions will be a bit more difficult, but that’s not a bad thing. Given our First Amendment heritage and devotion to free expression, it’s not too much to ask that the government prove some level of intent when seeking to send someone to jail solely for what they wrote.