Elonis v. United States: When Are Threats Free Speech?

“Fold up your [protection from abuse order] and put it in your pocket Is it thick enough to stop a bullet?”

So wrote Anthony Elonis after his wife left him in 2010. Elonis took to Facebook with the pseudonym “Tone Dougie” to create rap lyrics laced with expletives in what he termed “therapeutic” writing. These rap lyrics, ostensibly in Eminem’s style, included graphic descriptions of attacks on police officers, the FBI, elementary school students, and his wife. In one post, Elonis explained how it is illegal for him to say he wants to kill his wife, describing in explicit detail exactly which instructions he could not give on how to kill his wife. In a battle which ended before the Supreme Court on June 1st, Elonis claimed his provocative writing was free speech.

The case began when his former employer contacted the FBI, and Elonis was indicted by a grand jury on five counts of violating 18 U.S.C. §875(c), a federal law which prohibits the transmission of “any communication containing a threat to…injure [any] person.” During the trial, Elonis asked the judge to instruct the jury that he must have “intended to communicate a true threat” to be convicted. The judge refused, and the District Court instead used the “reasonable person” standard, whereby Elonis’ writing would be considered an illegal threat if a reasonable person would interpret it as such (thus, Elonis need not have any intent to communicate a threat for conviction).

Six months after hearing Elonis’ arguments, the Supreme Court, in an overwhelming 8-1 decision written by Chief Justice John Roberts, agreed with Elonis that the jury instructions which disregarded intent were improper. That Roberts wrote the opinion in this case is itself noteworthy. Chief justices use their ability to pick who writes decisions carefully. By taking this case for himself, Roberts was trying to bring the court together on a contentious free speech case.

Writing for the court, Roberts said that “Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a reasonable person would have recognized that the posts would be read as genuine threats. That is a negligence standard.” Roberts argued that, by using a negligence standard, the government is violating a basic tenet of criminal law, mens rea, which holds that a defendant must have guilty intentions to be convicted of criminal charges.

Behind this legal jargon are different legal standards, the two lowest of which are negligence and recklessness. These themselves have gradients: Negligence is usually insufficient for a criminal conviction, but it can be if it rises to “gross negligence” or “criminal negligence”. Recklessness, on the other hand, is generally enough to warrant a criminal conviction.The legal definition hinges on the difference between the accused not knowing something and knowing it but disregarding it. To give an example drawn from a Justia article: If a man fires a gun with his eyes closed on a busy street, knowing that there are people on that street who could be killed, he would be acting recklessly. However, if the same man fires a gun on a deserted street where people never venture, he would be acting negligently. In the first scenario, the man “recklessly” disregards his knowledge that firing the gun might kill someone, whereas, in the second situation, the man “negligently” fails to consider that firing a gun in a street that is usually empty might kill someone.

Importantly, the court declined to rule on whether this higher standard of recklessness would be sufficient to convict someone like Elonis for transmitting a threat. Highly critical of this gray area in his sharp dissent, Justice Samuel Alito concurred with the outcome ordering Elonis a new trial but criticized the court for not setting a clear precedent on intent for similar cases, saying “attorneys and judges need to know which mental state is required for conviction.” Alito argued that case law and the mens rea principle only prevent convictions for negligence: When the standard rises to recklessness, a jury can convict a defendant.

Further, the court bypassed the question of whether Elonis’ speech was protected by the First Amendment, which Alito argued was exactly the question before the court. In doing so, the justices turned what could have been a landmark free speech case clarifying when a threat is protected into a case that reaffirmed what has been true in case law in the United States for hundreds of years: Negligence in itself is insufficient for a criminal conviction.

As for Elonis himself, he won the battle but probably lost the war. The judge at his new trial will have to decide what directions to give the jury, given that the Supreme Court did not specify a standard to follow. The judge might well choose to follow the non-binding standard of recklessness espoused in Alito’s opinion, and Elonis could be convicted. If so, Elonis will undoubtedly keep filing appeals based on the same First Amendment issues, though he will have much greater difficulty winning again. The Supreme Court would not take up this case again, as the inability to set a standard is likely caused by disagreement among the justices about precisely what standard to set. Not until the different standards used by lower courts diverge substantially will the court step in to clarify its ruling.

Although the Supreme Court’s failure to resolve the free speech issue guarantees bewilderment for lawyers trying similar cases, Roberts’ decision does show that the court is wary of any expansion of the First Amendment to threats, as Elonis had hoped. Thus, the court has done more by what it did not rule than by what it did rule. Assuming it leaves this case to rest, it would probably allow a conviction on recklessness to stand. Although all the justices might not have agreed or wanted to rule on that standard, if it becomes the de facto standard, the government will be able to convict people for communications online if it can show that a defendant is recklessly transmitting a threat. By declining to raise the standard, the court is saying that, at least for now, someone cannot avoid a conviction just by adding “jk” to the end of a threat.