Law & the Courts

The Supreme Court Tackles ‘Threatening’ Speech, and Strikes a Small Blow for Liberty

(Photo illustration by NRO; Gpointstudio, Dmytro Konstantynov/Dreamstime)

Herewith, a lead paragraph that you will see written about no other country in the world:

The Supreme Court on Monday made it harder for prosecutors to convict those who make violent statements on Facebook and other social media, saying it is not enough that an ordinary person would find the rants threatening.

And a million bleeding hearts cried out for censorship.

A quick recap, for those who have not been following the case in question. Back in 2010, a Pennsylvania resident named Anthony Elonis was convicted on four counts of “violating 18 U. S. C. §875(c)” — a law that “makes it a federal crime to transmit in interstate commerce ‘any communication containing any threat . . . to injure the person of another.’” Among the people whom Elonis had allegedly “threatened” to “injure” were his ex-wife (“Did you know that it’s illegal for me to say I want to kill my wife?”); his local law-enforcement agency (“I’ve got enough explosives to take care of the State Police and the Sheriff’s Department”); the Federal Bureau of Investigation (“Pull my knife, flick my wrist, and slit her throat”); and a nearby kindergarten (“hell hath no fury like a crazy man in a Kindergarten class”).

Elonis could be sent to jail, the jurors were told, “if a reasonable person would foresee that his statements would be interpreted as a threat.” Rather unsurprisingly, the jury agreed that they would. In consequence, Elonis was found guilty and sentenced to 444 days in federal prison. Later on, the Third Circuit rejected his appeal, its three-judge panel concurring with the lower court. Eventually, the case made it to the Supreme Court.

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During oral arguments, the government defended its position, holding that Elonis’s conviction was legally justifiable because prosecutors had managed to demonstrate that he had made threats that could be comprehended by “a reasonable person.” “It doesn’t matter what [Elonis] thinks,” the government submitted; what matters is “the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat.” As one might expect, Elonis’s lawyers disagreed with this assessment, and proposed that the law only applied to those who harbored a desire to follow through on their threats. Because Elonis didn’t actually mean to cause any harm, his team contended, his speech was protected — not only under a clear reading of 18 U. S. C. §875(c), but under the First Amendment, too.

Before we proceed any further it is worth establishing at the outset what the nine justices were not being asked to do here. Despite some of the predictably hyperbolic headlines that followed yesterday’s verdict, the Court was not in fact being asked to decide whether Elonis’s words were pleasant. Nor, for that matter, was it being asked to decide whether the Internet should be a “safe” place for women of color or whether the language in question constituted a “true threat.” Instead, the nontet was being invited to resolve a narrow legal issue: namely, whether the statute that was used to convict Mr. Elonis was misused or misread by the prosecution, and, if not, whether its application in this case was legal under the First Amendment. The Court decided to answer only the former question and, even then, to do so narrowly.

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Writing for the majority, Chief Justice Roberts rejected the arguments that had been put forward by both the plaintiffs and the defendants. The plaintiffs were correct to submit that the conviction must be overturned, Roberts concluded, but not because Elonis did not intend to act upon his threats. Rather, Elonis was to be set free because the district court in which he had been convicted had given the wrong instructions to the jury. Contrary to the government’s submission, Roberts contended, what speakers “think” when issuing alleged threats matters a great deal, for under American law “wrongdoing must be conscious to be criminal.” “The fact that the statute does not specify any required mental state,” Roberts added, “does not mean that none exists.” In fact, the Supreme Court generally seeks to “interpret criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” The upshot of all this, as the Volokh Conspiracy’s Orin Kerr puts it, is that a:

 . . . conviction under the interstate threat statute cannot stand when it is based on the jury’s assessment that a reasonable person would perceive the message as a threat. There needs to be some proof of the defendant’s culpable state of mind, too — some evidence that he knew the message would be perceived as a threat, or at least was aware of that possibility.

In free societies at least, how a court arrives at a guilty verdict matters as much as whether it arrives at a guilty verdict.

None of this is to suggest that Elonis did not, in fact, know what he was doing; to imply that his words did not constitute “true threats”; or to conclude that he did not scare the living daylights out of his ex-wife. Indeed, crucial legal questions aside, it is possible that he is exactly the sort of dangerous psychopath that the statute in question was designed to lock up. But, in free societies at least, how a court arrives at a guilty verdict matters as much as whether it arrives at a guilty verdict, and, under the standard that the majority laid out yesterday, the court got it wrong. In order to comply with the law, Roberts decided, the court should have focused on Elonis’s state of mind (whatever that might mean in practice), and not on how his words might be interpreted by his ex-wife. It didn’t. Instead

the jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. [sic] Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.

By declining to consider the defendant’s mental state, then, the court that convicted Elonis effectively applied civil standards to a criminal case. As a result, its decision was overturned. The bottom line: Unless explicitly stated, mens rea remains intact in American criminal law.

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This decision, Brian Fung writes in today’s Washington Post, “comes at a cost.” That cost? To place “murderous talk in a safe zone so long as the perpetrator isn’t being serious”; to force “juries to meet a higher legal standard in judging suspects, because the harm done to the victim is valued less than the aggressor’s mental state, which can be more difficult to ascertain”; and, ultimately, to render “the Web even more hostile for women.” While he overstates the case a touch, Fung does have a kernel of a point. During the initial case, John Roberts acknowledged, “the Government presented as witnesses Elonis’s wife and co-workers, all of whom said they felt afraid and viewed Elonis’s posts as serious threats.” These are real people, not legal abstractions, and we should always remember them when mapping the contours of our public policy. Moreover, while the legal consequences of this decision are still being calculated — quite what Roberts means by a “mental state requirement” was not spelled out — one guaranteed result of the shift will be greater hesitation on the part of the nation’s prosecutors. “To convict someone of interstate threats under Section 875(c),” Popehat’s Ken White notes today, “the feds must now prove up the defendant’s subjective intent, not just how the audience will subjectively interpret the threats.” In turn, this “will raise the prosecution’s burden in pending and future Section 875(c) prosecutions.”

In every country except for America, Elonis wouldn’t even have gotten a hearing.

Because such discussions are irrelevant to the material question — which was legal, not political in nature — I am generally loathe to discuss whether or not this is a “good” thing. The Supreme Court is a court, not a legislature, and if those who are unhappy with this decision want Section 875(c) to be interpreted as it was by the Third Circuit, they should be lobbying Congress rather than John Roberts, and praying, too, that their coveted rules are not foreclosed by the First Amendment. Still, if I were forced to render a personal verdict, I would have to say that I am pleased. In every country except for America, Elonis wouldn’t even have gotten a hearing. Rather, he’d have been arrested at the first opportunity and convicted on the simple grounds that his wife had felt “threatened” or “distressed” by his words. This is how the execrable Public Order Act of 1986 works in Britain. It’s how pretty much all hate-speech legislation works in Western Europe and in Australia. Indeed it’s how every other human society has organized its affairs for centuries now. That we are even debating these marginal questions is indicative of good old-fashioned American exceptionalism, and of the genius that the Founders showed in insisting that our constitutional protections must sit above the will of parliament. Were I to be charged with designing a free-speech regime from scratch, I would assiduously ensure that the standard for convictions was much closer to that which was laid out by John Roberts than to that which was utilized by the Third Circuit, for anything less would an invitation to hecklers and to their vetoes, and, in the United States of America, that simply should not fly.