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Threats on the Internet: The Supreme Court Makes Criminal Prosecutions More Difficult

June 17, 2015 By Gerald W. Ueckermann, Jr.

Federal law makes it a crime to transmit a communication that contains a threat to injure another person.  But what evidence is needed to prove that a defendant made a threat for which he or she can be prosecuted criminally?  That question was recently considered by the Supreme Court of the United States inElonis v. United States, a case involving alleged threats that were posted on a Facebook page.

After his wife left him, taking their two young children with her, Anthony Elonis adopted a rap-style nom de plume under which he posted rap-style lyrics and other comments on his Facebook page.  These posts included graphically violent language and imagery, including the following:
 Did you know it’s illegal for me to say I want to kill my wife?…

It’s very illegal to say I really, really think someone out there should kill my wife?…

It’s incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launch at her house would be from the cornfield behind it because of easy access to a get-away road and you’d have a clear line of sight through the sun room…

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

That’s it, I’ve had about enough[.] I’m checking out and making a name for myself.  Enough elementary schools in a 10-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? 
Elonis often interspersed his posts with disclaimers that the lyrics and comments were “fictitious.”

Elonis was subsequently charged with violating 18 USC § 875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat… to injure the person of another.”  At trial, a primary issue was what mental state the government was required to prove Elonis possessed when he made the offensive communications.  Elonis requested that the jury be instructed that the government was required to prove that he intended to communicate a true threat.  The trial court, however, instructed the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat.  In other words, the court adopted a negligence standard which allowed Elonis to be convicted for making a communication that a reasonable person would view as a threat regardless of whether he intended to make a threat or was aware the communication could be a threat.

Elonis was later convicted of four counts of violating § 875(c), and after the Third Circuit Court of Appeals affirmed, the Supreme Court of the United States reviewed the matter.

The Supreme Court, interpreting § 875(c), held that making a communication that a reasonable person would view as a threat (negligently making a threat) was insufficient to support a conviction under federal law.  The court observed that such a standard would not adequately separate wrongful conduct from otherwise innocent conduct.  The court found that Elonis could be convicted if the government proved that he made a communication with the purpose of issuing a threat, or with knowledge that the communication would be viewed as a threat.  The court did not decide whether recklessly making a threat could support a conviction.  (Such a standard would allow someone to be convicted if he is aware that others could regard his statement as a threat, but he delivers it anyway.)
The Supreme Court’s opinion in Elonis was based entirely on its interpretation of 18 USC § 875(c).  The court declined to rule on whether the First Amendment of the United States Constitution requires more than negligence in order to support a conviction for making threatening communications.  Consequently, Congress could conceivably amend § 875(c) to criminalize communications that would constitute threats under a negligence standard.  Additionally, since the court did not address the Constitutional question, state statutes that criminalize negligently-made threatening communications would not be affected by the Elonis decision.