Issues
Does a conviction for threatening another person in interstate communications require proof of the defendant’s subjective intent to threaten and, if not, does the First Amendment prevent a conviction based only on a showing that a reasonable person would regard the statement as threatening?
The Supreme Court granted certiorari to address a circuit split on the question of whether the 18 U.S.C. § 875(c) (“§ 875(c)”) requires a showing of subjective intent in order to convict and, if not, whether conviction based only on a showing that a reasonable person would regard the statement as threatening violates the First Amendment. In this case, Anthony D. Elonis was convicted for publishing a series of Facebook posts describing committing acts of violence towards various people in violation of § 875(c). Elonis contends that the government must offer proof of a subjective intent to threaten, and that his speech is protected by the First Amendment. The United States, however, argues that § 875(c) requires only proof of general intent and that threats as defined in § 875(c) should not receive First Amendment protection. The Supreme Court’s ruling in this case could affect free speech rights as well as the rights of those who are victims of threats.
Questions as Framed for the Court by the Parties
It is a federal crime to “transmit[] in interstate or foreign commerce any communication containing * * * any threat to injure the person of another,” 18 U.S.C. § 875(c). Numerous states have adopted analogous crimes. The question presented is:
Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.
IN ADDITION TO THE QUESTION PRESENTED BY THE PETITION, THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION: “Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. §875(c) requires proof of the defendant’s subjective intent to threaten.”
Facts
Anthony D. Elonis was indicted with five counts of making threats in violation of 18 U.S.C. § 875(c) (“§ 875(c)”). Section 875(c) provides that it shall be illegal to transmit “in interstate or foreign commerce any communication containing . . . any threat to injure the person of another.” Elonis was indicted for communications all made on the social networking website Facebook.
Count 1 alleged that Elonis made threats against the employees and patrons of the amusement park where Elonis worked. Soon after being fired for posting a photograph of himself with a toy knife against his coworker’s throat with the caption “I wish,” Elonis published a series of posts which formed the basis of Count 1. Elonis claimed he had keys to his former workplace and implied that he would enter the park to cause fear.
Count 2 alleged that Elonis made threats against his estranged wife. Elonis published several Facebook posts that described taking the life of his wife. Because of these posts, Elonis’s wife obtained a protection-from-abuse order against Elonis. Soon after, Elonis posted a parody of a comedy sketch, describing a desire to kill his wife and diagramming his wife’s home to explain how he would carry out such a plan. Elonis then posted on his Facebook: “Fold up your PFA [protection-from-abuse order] and put it in your pocket / Is it thick enough to stop a bullet?” Elonis also commented that he had enough explosives to “take care of the State Police and the Sheriff’s Department.” This statement formed the basis of Count 3 for threats against local law enforcement.
Count 4 alleged that Elonis made threats against a kindergarten class. Elonis posted on his Facebook that he planned to make a name for himself by shooting a kindergarten class. This post caught the attention of the Federal Bureau of Investigation (“FBI”). After FBI Special Agent Denise Stevens interviewed Elonis regarding the post, Elonis published a Facebook post where he described wanting to kill the agent and claimed he had been wearing a bomb during the interview. This post formed Count 5 for threats against an FBI agent.
At trial, Elonis claimed his statements were made in jest or were rap lyrics he had written to cope with his feelings about his wife leaving him. A jury convicted Elonis of Counts 2 through 5. The U.S. District Court for the Eastern District of Pennsylvania denied Elonis’s post-trial motions, and sentenced him to forty-four months in prison and three years of supervised release. The U.S. Court of Appeals for the Third Circuit affirmed the district court’s ruling, rejecting Elonis’s argument that the court below had erred in instructing the jury that no subjective intent to threaten was necessary to violate § 875(c). The Supreme Court granted certiorari to address a circuit split about whether subjective intent is required by § 875(c) and if not, whether § 875(c) violates the First Amendment.
Analysis
The Court will decide whether a conviction under 18 U.S.C. § 875(c) (“§ 875(c )”) for threatening another person requires proof of a defendant’s subjective or “specific” intent to threaten. Elonis contends that the government must offer proof of his subjective intent to threaten as a matter of statutory interpretation and that his speech is protected by the First Amendment. The United States, however, argues that § 875(c) requires only proof of general intent and that threats as defined in § 875(c) should not receive First Amendment protection.
IS PROOF OF A SUBJECTIVE INTENT TO THREATEN REQUIRED AS A MATTER OF STATUTORY INTERPRETATION?
Elonis contends that § 875(c)’s plain meaning, legislative history, and early case law demonstrate that proof of a subjective intent to threaten is required for a conviction under § 875(c). Absent explicit definitions, Elonis argues that statutory language must be given its plain meaning. Elonis suggests that common definitions of threat contain some kind of intent component, such as “intent to inflict harm” or “intention of inflicting injury.” Hence, Elonis contends the plain meaning of § 875(c) requires subjective intent. Likewise, Elonis asserts that Congress sought to embody the plain meaning “threat” in § 875(c). Elonis explains that “[t]he first national law addressing the communication of threats” covered extortion and required a showing of a defendant’s intent to extort. Elonis argues that when Congress expanded the statute seven years later to include threats made without the intent to extort, codified at § 875(c), Congress gave no indication it wished to write out § 875(c)’s subjective intent.
Furthermore, Elonis argues that the Third Circuit’s reasonable person standard contradicts fundamental principles of statutory construction in criminal law. Elonis asserts that the reasonable person standard determines liability based solely on whether a reasonable person would interpret a defendant’s statement as a threat. Without a subjective intent requirement, Elonis maintains that the reasonable person standard could impose criminal liability for actions that would not give rise to civil liability. Elonis contends that the Third Circuit’s approach to § 875(c) requires no showing of intent. Elonis contends that it is improbable that Congress intended to subject persons to criminal liability upon a lesser showing than required for civil liability. Elonis further asserts that courts presume criminal statutes require some kind of intent, even if it is not expressed in the statute, in order to differentiate acts of intentional wrongdoing from civil negligence.
In opposition, the United States argues that a subjective intent to threaten is not an element of § 875(c). The United States contends that the text of § 875(c) does not contain a subjective intent element whereas neighboring subsections in § 875, which proscribe certain types of threats, include specific intent requirements. Thus, the United States maintains that this contrast implies that Congress purposefully omitted a subjective intent requirement in § 875(c). The United States notes that Congress enacted the statute in part as a response to requests to supplement § 875(c)’s predecessor with more flexible standards. Contrary to Elonis’s assertion, the United States argues that § 875(c) would not hold a defendant liable for simple negligence absent a subjective intent requirement. The United States explains that courts generally impute (i.e., assume) a requirement of general intent to differentiate “wrongful conduct from otherwise innocent conduct” when a statute contains no explicit intent requirement. In this case, the United States argues that it must show “that the defendant knew he transmitted a communication and that he comprehended its contents and context.” Hence, the United States contends that a defendant could not be convicted for facts beyond her awareness.
Moreover, the United States argues that imputing subjective intent into § 875(c) runs contrary to the Court’s holding in Hamling. In that case, the United States explains, the Court affirmed convictions for “knowingly sending obscene, lewd, lascivious, indecent, filthy or vile material through the mail.” The United States notes that the Court approved the district court’s jury instruction, which stated that the defendants’ belief about whether the materials were obscene was irrelevant. The United States explains that the Court reasoned that the wrongdoing Congress sought to prevent would only increase “if the belief of the accused . . . was recognized as the test for determining whether the statute has been violated.” The United States maintains that a similar result could occur in this case.
IS PROOF OF SUBJECTIVE INTENT REQUIRED BY THE FIRST AMENDMENT?
Elonis contends that the First Amendment constitutionally requires subjective intent. Elonis explains that the Court has stated that categories of speech cannot be exempted from First Amendment protection “without any long-settled tradition of subjecting that speech to regulation.” Elonis argues that this conclusion follows from the basic principle of the First Amendment: The government cannot regulate expression it merely finds “disagreeable.” Accordingly, Elonis argues that the First Amendment requires intent before the government can impose liability for that speech.
The United States, however, argues that the First Amendment does not provide absolute freedom of speech. The United States explains that the Court has recognized certain categories of unprotected speech, such as “true threats.” The United States argues that the First Amendment does not protect true threats because the social value of true threats is outweighed by the risk of disorder they pose. The United States maintains that this conclusion reflects the “categorical judgment” that society has a right not to be victims of fear and disorder regardless of the speaker’s intent. The United States asserts further that Elonis’s subjective intent requirement would lead to anomalous results. For example, the United States argues that if two people made “the same Facebook posts under identical circumstances,” one of the posters could avoid liability by maintaining that her post was a joke, even if no reasonable person would think so, while the other could face criminal penalties.
VIRGINIA V. BLACK
Elonis argues that the Court declared the “impermissibility of allowing liability for speech without proof of wrongful intent” in Virginia v. Black. Elonis states that a plurality of the Court in Black held that subjective intent was constitutionally required to differentiate “constitutionally proscribable intimidation from protected core political speech.” Thus, Elonis argues that the Court recognized a subjective intent requirement for criminal threat statutes.
Contrary to Elonis’s interpretation, the United States argues that Black did not hold that a showing of subjective intent is required to find that a true threat was made. Rather, the United States contends the Court established that true threats include statements where the speaker intended to convey a threat, but did not exclude other statements from the category of true threats. The United States asserts that the Court did not reach this latter issue because the statute in Black applied to a specific subset of true threats, and had an explicit intent requirement. The United States argues that the Court has not recognized subjective intent requirements in analogous areas of unprotected speech, such as obscenity laws.
Discussion
The issue before the Supreme Court is whether 18 U.S.C. § 875(c) requires a finding of subjective intent to threaten, and if not, whether only requiring a showing that a reasonable person would regard the statement as threatening violates the First Amendment. Elonis argues that a negligence standard regulating free speech is contrary to the First Amendment. Conversely, the United States argues that threats are not protected speech and the government has a compelling interest in protecting the public from threats. The outcome of this case could affect First Amendment free speech rights and the rights of victims who feel unsafe because of threats.
CHILLING EFFECT ON FREE SPEECH
In support of Elonis, the American Civil Liberties Union and others (“ALCU”) argue that holding in favor of the United States would violate the First Amendment and have a chilling effect on political or controversial speech because people will “self-censor” to avoid criminal liability for making threats. Elonis and the ACLU argue that because a negligence standard hinges on how the communication is perceived, people will remain silent rather than risk criminal sanctions for statements that could be interpreted as threatening. In particular, Elonis and the ACLU argue, such a chilling effect would especially impact minority viewpoints because unpopular or negative opinions are more likely to be misunderstood or considered threatening by a jury. Elonis and the ACLU fear that difficulties discerning the tone or context in the Internet era, where communication takes place over email or Facebook, could cause more misunderstandings and accidental threats. Elonis and the Marion B. Brechner First Amendment Project (“Brechner”) also express concern about artistic expression, and in particular, on the genre of rap music. Brechner argues that because hip-hop culture is misunderstood in American society as celebrating violence, rather than seen as a legitimate form of political and artistic expression, a negligence standard could target rap artists or cause self-censorship of political or controversial commentary.
The United States and supporting amici argue a negligence standard would not have a chilling effect on free speech. The United States contends that fighting words and obscenities do not require defendants to intend to threaten another person. Thus, the United States argues, allowing a negligence standard for threats would similarly not infringe on First Amendment free speech rights. Further, the United States and the Anti-Defamation League (“ADL”) argue that a negligence standard would still allow a jury to consider the overall context when determining how a reasonable person would perceive the communication. Accordingly, the United States and the ADL maintain that people would not need to rely on self-censorship to avoid facing criminal penalties for statements misunderstood as threats. The United States also argues that a holding in its favor would not censor rap music because in jurisdictions that allow a negligence standard, rappers like Eminem whose lyrics frequently include violent imagery have not been convicted of making threats under § 875(c).
FEAR AND DISRUPTION
The United States and supporting amici argue that holding in favor of Elonis would prevent the government from pursuing its compelling interest in protecting “fear and disruption” associated with perceived threats. The United States and a coalition of U.S. states argue that because there is harm in the feelings evoked by a perceived threat, protecting only against intentional threats would not be enough. In particular, advocates against domestic violence express concern that holding in favor of Elonis would expose victims of stalking and domestic violence to further abuse and hinder victims’ ability to obtain protection through restraining orders. Further, the ADL and anti-domestic violence advocates argue that a negligence standard should apply even to Internet communications because the Internet provides anonymity which could lead to harmful cyber bulling.
Conversely, Elonis and supporting amici stress that courts must give First Amendment freedoms “breathing space” from government regulation. In support of Elonis, the Rutherford Institute distinguishes the right to be protected from intimidation from the right to be free from fear, arguing that fear alone is not enough to justify limiting First Amendment rights. Elonis and the ACLU emphasize that the right to make political or controversial statements is central to the American ethos and that a holding for the United States would dismantle free speech.
Conclusion
The Court will decide whether conviction under § 875(c) for threatening another person requires proof of a defendant’s intent to threaten. Elonis contends that the plain meaning of the statute paired with First Amendment concerns requires proof of subjective intent. The United States counters that subjective intent was purposefully left out of § 875(c) and that the First Amendment does not protect threats as defined in § 875(c). Elonis and supporting amici argue that not requiring proof of subjective intent chills free speech. However, the United States contends that requiring proof of subjective intent undercuts its efforts to protect the government’s compelling interest in preventing fear and disruption. Ultimately, the outcome of the Court’s decision will affect the scope of First Amendment free speech rights and the rights of people facing threats.
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Additional Resources
- Lawrence Hurley: Inmate Beards, Facebook Threats on U.S. Top Court’s Docket, Reuters (Oct. 5, 2014).
- Adam Liptak: Supreme Court’s Robust New Session Could Define Legacy of Chief Justice, N.Y. Times (Oct. 4, 2014).
- Bill Mears: Supreme Court’s Year Ahead: Rapper, Unions, Bearded Prisoners, CNN (Oct. 5, 2014).
- Charles Poladian: Supreme Court Gay Marriage Decision: New Term Includes Facebook Threat, Discrimination Cases, International Business Times (Oct. 5, 2014).