Threat or Theatre?

The Supreme Court issued its opinion in Elonis v. U.S., commonly known as the “Facebook threats” case, earlier this week.   The case involved charges under the federal “threats statute,” which criminalizes communicating “any threat to injure the person of another,” that Elonis had posted threats on Facebook directed at various parties, including his ex-wife, local school children, and a federal agent.  One example:  “Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined . . . the only question is which one?”   Another, likely directed at his ex-wife:  “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”  Not up to Shakespeare’s standards but, perhaps invoking Thalia, the muse of comedy and rustic poetry, Elonis posted disclaimers to that effect that he was simply writing rap lyrics, similar to some of Eminem’s songs.

Elonis allegedly began posting these and similar lyrics after his wife left him.  He persisted even after the postings caused him to lose his job and his ex-wife obtained a protective order against him. Likely it was employing his artistic license against the FBI that brought his work before a jury of his peers.

First Amendment lawyers eagerly awaited clarification of the distinction between “true threats” and protected speech in the wake of the Snyder decision, wherein the First Amendment protected the Westboro Baptist Church’s antics and hateful placards.  Offensive speech may not rise to the level of a threat, however, and, in any event, the Court eschewed a literary review.  It instead reversed on defective jury instructions that allowed a fact finder to short cut deliberations by assuming that a hypothetical “reasonable person” would have known that the threat would instill fear.  Explaining that “Federal criminal liability does not turn solely on the results of an act without considering the defendant’s mental state”  the Court held that the speaker must intend to instill fear in the subject of his threats, or know that the statement would have such effect, before even an objective threat became actionable.

This decision is consistent with courts’ reluctance to construe a statute so that negligence suffices for criminal liability and its insistence that one must have a culpable state of mind to be convicted.  Because proof of defendant’s intent was necessary regardless of whether the First Amendment applied, the Court found it unnecessary to address constitutional defenses. Although some expressed disappointment that the Court failed to resolve the ultimate question,  the doctrine of Constitutional avoidance dictates otherwise – i.e., when  a statute is susceptible to a construction that eliminates the need to decide novel Constitutional issues, courts should construe the statute narrowly.

The curtain has not closed on Elonis, however, because he can be retried under the standard articulated by the Supreme Court and his First Amendment defense remains in play.  Elonis may argue that, as a Facebook poster, he is entitled to the same protection enjoyed by musicians who release music to the population at large, but is posting ostensible threats within his own small social circle – knowing full well that the subjects will see them –comparable to Eminem?  One also might question whether the case should turn on defendant’s failure to display even rudimentary literary or social merit.

The case adds to the complications of prosecuting threat statutes, and may present an obstacle to prosecutions under recently enacted cyberbullying statutes.  It also may strike another nail in the coffin of those rarely used state criminal libel statutes.  A seminal First Amendment case decided over 50 years ago, Garrison v. Louisiana, held a Louisiana criminal statute unconstitutional because it allowed punishment of false statements against public officials without ill will or knowledge of their falsity.  The holding of Elonis may have broader reach since it was not decided on Constitutional grounds and therefore does not discriminate between public officials and private figures like Elonis’ ex-wife.

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