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

[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:InB4Twitter

[meta-monkey]

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