Supreme Court Overturns Conviction For Man Who Posted 'Threatening' Messages On Facebook

schwit1 sends news that the U.S. Supreme Court has ruled 7-2 in favor of Anthony Elonis, a man who wrote a series of angry messages on Facebook. The posts included quotes from rap lyrics containing "violent imagery," and were directed at Elonis's wife, his co-workers, law enforcement, and a kindergarten class. Elonis was charged and convicted under a federal statute that outlaws "any communication containing any threat to kidnap any person or any threat to injure the person of another." The jury in his case was told the standard for judging such a threat was whether a "reasonable person" would interpret it as such. According to the Court's ruling (PDF), that standard was not enough to convict him. They call it "a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of 'awareness of some wrongdoing.'" The case is notable for being the first Supreme Court ruling about free speech on social media, but the ruling itself was quite narrow.

Comments

Good ruling

[grimmjeeper]

It's often times difficult to differentiate between rantings of someone blowing off steam and real threats. But taking a zero tolerance approach is not the right way to do it. One needs to engage their brain when evaluating what really is a threat and what isn't. I know it's difficult for people to do but it's the only way to keep from stomping on the liberty of the people.

Re:Good ruling

[Anonymous Coward]

Not at all, what we need to do is protect everybody from the threat of harm by confining them in a mental health ward until they admit they are dangerous and need to be kept confined.

Re:Good ruling

[Nexus7]

You should tell that to the police in this country.

Re:Good ruling

[MightyMartian]

Internet trolls and other hyperbolic posters have been around as long as the Internet was around. I remember when I first started posting one Usenet in the very early 1990s (1990-91 or so), that there were many flamewars that ended with everything from legal threats to, at least in one case, a poster threatening to show up at another poster's house and beat him senseless, and in those days many of us actually had our home addresses in our bloody sigs! I don't think anyone ever really took it seriously, even when the poster making the threats was a net kook (and ye olden days there were some legendary kooks, particularly in places like talk.origins). People, particularly when shrouded in anonymity, behave in ways that they would never dream of behaving in person, which to my mind is a key to the notion that most of even the vilest trolls are really just assholes letting off steam in public forums.

I'm not saying that all conduct on the Internet should be protected, but I think we have to accept that anonymity and instant communications from any corner of the globe creates a somewhat different situation. I've personally been threatened with bodily harm a couple of times in the over a quarter of a century I've been on the Internet, and while I can't say it didn't effect me, I suppressed any desire to panic and realized that the assholes in question were, well, just assholes, and the odds were pretty damned low that I was ever in danger.

Re:Good ruling

[grimmjeeper]

I agree. I was surfing the BBSs and Usenet back in the 80's and I remember well the flamewars to which you refer.

What needs to be drawn from this ruling is that you have to exercise discretion when you are dealing with online postings. You have to acknowledge that there is a tremendous gray area. And you can't just say anything that even remotely looks like a threat is criminal. You can't treat the world as black-or-white. You have to use your brain and evaluate each case rationally. It's more work and it's difficult but that's what it takes to ensure liberty.

Re:Good ruling

[CaptainLard]

I've personally been threatened with bodily harm a couple of times in the over a quarter of a century I've been on the Internet, and while I can't say it didn't effect me, I suppressed any desire to panic and realized that the assholes in question were, well, just assholes, and the odds were pretty damned low that I was ever in danger.

Were you threatened repeatedly over a year or so by someone you lived with for 7 years and had current knowledge of where you live and all your daily habits? Or were you threatened in 733t speak by "IRCHandle151" in a post because you like VI or whatever? If its the latter I can understand why you thought the odds are pretty low of the threat being carried out.

Re:Good ruling

[Trailer Trash]

To be fair, in the vast majority of cases, this is exactly what happens... cop engages brain, realizes that the situation either either something dumb, mistaken, or impossible to prosecute (and is otherwise not a crime), says as much to the complainant, and moves on. Or, in the case of what may be a crime but turns out to not be, same-same, with maybe a stern talking-to of the 'offender' that maybe he should not be so dumb in the future, or at least don't make the activity appear so damned suspicious. ...and then there's the small minority of police officers who are either overeager newbies, had a really bad day, decides he doesn't like the guy, didn't get laid the night before, a closet sociopath, or suchlike.

About the same sample size as humanity at large, really, but with one subtle-yet-important distinction: force.

Having studied the problems with law enforcement for years I can say confidently that in most departments what you've said is true. The real problem is that when that one guy really screws up the reflexive response from everybody in his department (and the DA's office) is to circle the wagons and protect the idiot cop. I've talked about it here before but look up the case of David Bisard in Indianapolis as a fine example where there are no gray areas. He got drunk on duty and ran over a motorcyclist who was stopped at a stop light, killing the cyclist and gravely injuring two others. The FOP paid for his defense and 19 cops who showed up acted as if they couldn't tell that a guy who would later test at .20% BAC (you read that correctly) had been drinking.

That's the real problem.

Re:Good ruling

[meta-monkey]

Not a retrial, yet. They remanded it back to the 3rd circuit to figure out what to do with the guy.

And I think the court screwed up. I agree with Justice Alito (I just finished reading the court opinion). They sent it back to the 3rd circuit but didn't give them a clear guide on what to do.

The issue is this:

1) "True threats" are not constitutionally protected. They never have been, never will be. "I can say whatever I want" ends when a reasonable person hearing what you say becomes afraid for their safety. And rhyming doesn't make it okay. It will never be protected to call up a school and say "roses are red, violets are blue, you're dead and all the kiddies are too." That's going to justifiably freak a lot of people out. This is not the same thing as merely being offended. I mean actually threatened.

2) Elonis was convicted on four out of five counts of violating 18 U. S. C. 875(c), which makes it a federal crime to transmit in interstate commerce "any communication containing any threat . . . to injure the person of another."

3) The problem is there's no mens rea requirement in that. The lower courts instructed the jury that mere negligence is enough. "He should have known people would be threatened by this."

4) Elonis argued that criminal law very rarely works that way. Negligence is a fine standard in civil and tort law. But to actually punish somebody for crime, they need to have knowledge that what they were doing was wrong. "Should have known better" isn't good enough. Elonis argues that they need to establish that he intended to threaten. (Not intended to carry out the threat. Intended to threaten.)

5) Elonis is right in that. He got a bum deal on the negligence standard. That isn't good enough. But there's another standard between "negligence" and "intent" and that's "reckless." Recklessness is a reasonable standard by which to merit criminal punishment. That would be "knew it would probably make people afraid for their lives and did it anyway." Is that a reasonable standard for mens rea for this law?

6) The majority decision didn't address recklessness. They just said "it wasn't really argued by either side and the lower courts didn't rule on recklessness." However, that's...wrong. Both sides did bring it up in oral arguments, Elonis obviously saying "no, there has to be intent" and the state saying "who cares, negligence is enough." They could have decided they didn't have enough information to answer that question and gone back to the parties for further briefing and argument. But they just said "nope, not saying."

7) So where does that leave the lower courts, and users of social media? What IS the standard whereby one may be convicted of threatening others? All the Supremes will say is "not negligence." But now we don't know if the standard is actually recklessness or intent. Thanks a lot guys!

As an aside...Dear Congress: Please always write the mens rea requirements into each law so the courts know what standard to apply and don't leave them to guess. Thanks! xoxo, monkeykins.

So now the 3rd Circuit will figure out what to do with him. I don't know what that will be. His conviction under the negligence standard is overturned. I think the only way to reapply a recklessness standard would be with a new trial. The problem was the jury instructions, so you need a new jury. I don't think there's a double jeopardy issue, because this would essentially be a mistrial, stemming from action instigated by the defendant. But then the question is, "what should the jury instructions be this time?" Don't know!

My guess would be "recklessness," and it could kind of go either way.

He clearly knew lots of people were taking the things he was saying in the way he was saying them seriously. He made threats against his coworkers and his boss fired him. He made threats against his wife and she found them credible enough to get a restraining order

Re:Does this mean...

[halivar]

Ignorance of the law is an excuse?

No. Lack of intent is an excuse, and is part of the law for which ignorance is not an excuse.

Re:Does this mean...

[Frobnicator]

Ignorance of the law is an excuse?

No. Lack of intent is an excuse, and is part of the law for which ignorance is not an excuse.

It is trickier than that. The normal legal term is "mens rea", a Latin term for "guilty mind", which is more commonly called "intent". There is a spectrum within the law for things that require intent to be considered criminal all the way through strict liability that do not care about intent.

Many laws, especially older criminal laws, either directly or indirectly address intent. Some laws require the prosecutors show bad intent. Others will modify penalties based on intent. Still others do not take intent into account. Sadly many new laws have been written that should have considered intent, but do not.

For example, selling alcohol to minors has strict liability. It doesn't matter what your intent was. It doesn't matter if you didn't know the law. If cops are doing a sting on the store and someone sells alcohol to a minor, they are liable.

Sadly criminal law is all over the map when it comes to rules about intent. Sometimes two seemingly identical situations can result in one case being dismissed for lack of showing intent, the other can have no intent considered. One currently popular example is officers saying "I feared for my safety and the safety of others", which seems to be the magic incantation to get out of major crimes including murder, where on the other hand "the girl told me she was 18 and even showed me her driver's license with the age" will see no mercy as statutory rape generally has strict liability rules.

Re:InB4Twitter

[weilawei]

What? Offtopic? Did the mods miss TFS or TFA? This is about a guy being offensive.

"Hi, I’m Tone Elonis.

Did you know that it’s illegal for me to say I want to kill my wife? . . . It’s one of the only sentences that I’m not allowed to say. . . . Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife. . . . Um, but what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. . . . But not illegal to say with a mortar launcher. Because that’s its own sentence. . . . I also found out that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. . . . Yet even more illegal to show an illustrated diagram. [diagram of the house]. . . ." Id., at 333.

Shit, this guy could practically be a Slashdot commenter.

$commentSubject

[Falos]

One thing that bugs me about these is that people seem to get the unconscious takeaway that the guy gets off scott free. That he walks away without consequence for his words. And they think to themselves (pretty reasonably) "that's unacceptable!" and even "we need to make the law more interpretable and arbitrary!"

But keep in mind that (like other behavior that isn't OMG FORBIDDEN BY FEDERAL LAW) pissing off employers, peers, friends/enemies, etc. will most certainly indeed have consequences. Society has it's own control effects without having to indulge (and fund) the sUe-S-A hype.

Re:Too late for him

[Graydyn Young]

Your post made me curious enough to read the article to hear some of the things Elonis said. Here's my favorite:

When his wife secured a Protection From Abuse order by a state judge, Elonis went on Facebook to declare, “Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?”

What a charming man.

Re:InB4Twitter

[meta-monkey]

It wasn't about being "offensive." It was about being threatening.

No First Amendment Precedent, not overturned

[radarskiy]

The summary claims that "the first Supreme Court ruling about free speech on social media", but SCOTUS has not only not ruled on free speech here they specifically state that the First Amendment has nothing to do with their decision. To wit: "Given the disposition here, it is unnecessary to consider any First Amendment issues".

This is actually a due process ruling, on whether the jury instructions were sufficient for a criminal case vs. a civil case.

In addition, the conviction has not been overturned. The case has been reversed and remanded back to the lower court to retry with correct jury instruction, but the defendant is not free yet.