Justices Are Told Disturbing Facebook Posts Don't Qualify as Prosecutable ‘True Threats'

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By Lance Rogers

Dec. 1 — A man who posted a series of violent online rants about his wife and others was wrongfully convicted of making criminal threats because the government produced no evidence that he actually intended the posts to be threatening or to cause fear, the man's lawyer told the U.S. Supreme Court during oral argument Dec. 1.

Allowing the government to convict without proof of subjective intent criminalizes and chills free expression that is provocative and often ambiguous in meaning, John P. Elwood of Vinson & Elkins LLP, Washington, argued.

Ambiguous Hyperbole or Threat?

Suppose someone tweets a photo of a cop in Ferguson, Mo., on the night of the riots and paraphrases Thomas Jefferson's quote, “The tree of liberty must be refreshed from time to time with the blood of tyrants.”

Is that a threat against the police department, or is it protected by the First Amendment? Elwood asked.

“If someone puts on their Facebook page a picture of a woman walking into a family planning clinic over the phrase ‘turn or burn,' is that a message of Christian doctrine—saying she's going to be going to hell if she doesn't turn back—or is it a threat to firebomb the clinic?” he wondered.

Elwood is asking the court to overturn the conviction of Anthony Elonis, who was found guilty of violating 18 U.S.C. § 875(c) for writing a series of Facebook posts that talked about murdering his estranged wife, shooting up a class of kindergartners and slitting an FBI agent's throat. Elonis testified at his trial that he was going through a difficult divorce, that his posts were therapeutic, that he was just venting and that he never meant to be taken seriously.

The jury returned a guilty verdict after it was instructed that a statement qualifies as a “true threat” outside the protection of the First Amendment if the defendant makes the statement in a context in which a reasonable person would foresee that someone else would see it as an expression of intention to cause serious harm.

Words Have Consequences

The lawyer arguing the case for the government said it doesn't matter whether Elonis intended to cause trepidation. Neither the plain meaning nor the original purpose behind the federal law requires the government to show anything more than that the defendant was aware of the circumstances that made the statement threatening and that the statement itself caused fear, Michael R. Dreeben, of the U.S. Solicitor General's Office, said.

The only mens rea requirement in the statute is that the accused knows and understands what he is saying, Dreeben said.

Congress reasonably presumed that people who are speakers of the English language and who know the meaning of the words they speak “are accountable for the consequences of those words,” he said.

According to Dreeben, Elonis takes the position that “it's not a threat if somebody can say, ‘Hey, didn't really mean it, sorry, that wasn't my purpose or intent.' ” But that is not the standard set out in the threat law, he said.

“What we want is a standard that holds accountable people for the ordinary and natural meaning of the words that they say in context,” Dreeben said.

Middle Ground

The justices didn't reveal in their questioning any clear preference for either of the two approaches.

However, several of the justices did wonder whether there is any middle ground between Elwood’s subjective-intent approach and the government’s objective-intent stance, and they vigorously peppered Elwood with questions about “purpose,” “knowledge” and “recklessness.”

The questions came so thick and fast from different directions that, at one point, Elwood appeared to be backtracking on what standard he might find acceptable.

“You really have me confused,” Justice Antonin Scalia said. He said he didn't think Elwood needed to argue “purpose” to get to where he wanted to be.

‘Hell Hath No Fury Like a Crazy Man.'

Elonis frequently included statements proclaiming his First Amendment free-speech rights and ended the posts with playful “emoticons.”

But prosecutors said these things didn't alter the sinister nature of the communications.

“There's one way to love you but a thousand ways to kill you,” Elonis wrote in one post. “I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

After a state court issued a protective order, he took to Facebook again to vent his frustration: “That's it, I've had about enough I'm checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a kindergarten class The only question is . . . which one?” 

After an FBI agent who had been monitoring the defendant's posts came to his home to interview him about the statements, the defendant wrote that it took all his strength not to “slit her throat” and warned the agents to bring a SWAT team the next time they approached his house.

“Did you know that it's illegal for me to say I want to kill my wife?” he said.

He also posted, “Um what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife.”

At trial, the defendant's wife testified that she took these threats seriously and that she felt like she was being “stalked.”

Reasonable Teenagers

Both Justice Stephen G. Breyer and Chief Justice John G. Roberts Jr. pressed Dreeben to concede the significance of context in his definition of what is reasonable.

“What is it?” asked Roberts. “Is it a reasonable teenager on the Internet?”

“If there is such a thing,” Dreeben replied, evoking laughter in the court.

The test is a reasonable speaker test, the government's lawyer said.

“We all know that if we're communicating among friends, particularly in face­to­face context, we can say certain things that will be understood as sarcasm,” he said.

But when we widen the audience and put a statement out in a situation where reasonable people are going to be alarmed about a sinister threat against an elementary school, you have a completely different scenario, he said.

Eminem Is Different

The fact that Elonis placed some of his threats in rap music form led some observers to anticipate a wide-ranging discussion about the way rap music is perceived. Indeed, a pair of self-styled “rap music scholars,” University of Richmond's Erik Nielson and University of California-Irvine's Charis Kubrin, submitted an amicus curiae brief supporting Elonis and explaining how rap music is received by its listeners.

But the subject of rap music came up only briefly when Roberts asked Dreeben about the difference between Elonis's posts and the violent lyrics by rap artist Eminem in which he fantasizes about shooting up a school and killing people who have antagonized him.

“There's a big difference between Eminem saying those things at a concert and Elonis making his posts after a court ordered him to stop harassing his wife,” Dreeben said.

Any reasonable person at the concert would conclude that these are not serious expressions of Eminem's intent to do harm, Dreeben said.

Fighting Words

Justice Elena Kagan was skeptical that the government needed to meet the high hurdle that Elwood was pushing. In “fighting words” cases, we've never applied this type of heightened standard, she said.

“All the government has to show is that you've said something that would cause a reasonable person to punch you in the face,” she said. Why don't we use the same standard here? she wondered.

Fighting words arise in a very small category of speech that involves “hurling epithets, nose to nose,” where the words will lead to reflexive violence, Elwood replied. “There is no time for anything but a law enforcement response. The only option at that point is to put the cuffs on the guy before he lands a punch.”

In this situation, there is “much more time for a law enforcement inquiry,” he said.

Circuit Split

The case has pitted staunch defenders of the First Amendment who treasure the right to engage in provocative speech against victims' rights advocates who support the government crackdown on stalking and domestic violence.

Dreeben told the court that the threat statute seems meant for the domestic abuse scenario where one spouse gets a protection order that puts the other spouse on notice that his statements are being viewed as a threat. Adding a scienter element in that context is totally unnecessary, he said.

“The proof is in the pudding,” Dreeben said. Almost all the circuit courts have sided with the government, and there has been no evidence that First Amendment rights are being chilled, he said.

The First, Third, Fourth, Sixth, Eighth and Eleventh circuits have all ruled that there is no subjective-intent component in the statute.

Only the Ninth and—just recently—the Tenth circuits have indicated that a “true threat” is one uttered with the subjective intent to create some sense of dread, he added.

Roadmap for Legal Threats?

Justice Samuel A. Alito Jr. asked Elwood whether his position didn't amount to a “roadmap for threatening a spouse and getting away with it.”

“You put it in rhyme, put some stuff about the Internet on it and you say, ‘I'm an aspiring rap artist,' and so then you are free from prosecution,” Alito said. Are the government and amici opposing domestic violence just plain wrong when they say your position will have a grave effect on domestic violence? he asked.

The answer is that many states, including California, Texas and New York, have a subjective-intent requirement, and “the government has never shown that those states, very populous states, have had any trouble protecting their populace from fear,” Elwood said.

To contact the reporter on this story: Lance Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: Mike Moore at mmoore@bna.com

Transcript of oral argument at http://pub.bna.com/cl/ElonisArg.pdf