Guest Blog: Nancy Leong, Argument Recap, Elonis v. United States
The year 2014 has borne witness to many events relating to offensive, harassing, and threatening online speech. In January, columnist Amanda Hess wrote a piece called “Why Women Aren’t Welcome on the Internet,” sparking a wide-ranging and still-ongoing conversation about online speech and the First Amendment. The debate over Internet speech has extended to a number of areas. New York’s highest court considered and ultimately rejected a state cyberbullying statute as overbroad, in violation of the First Amendment. More than twenty states passed or are considering statutes criminalizing revenge porn. Meanwhile, intimate photos of celebrities were stolen, downloaded, and shared over and over. GamerGate led to intense online harassment of women involved in the video game industry, with serious consequences in the offline world—after receiving graphic anonymous threats, pop culture commentator Anita Sarkeesian cancelled a talk, while video game developer Brianna Wu had to leave her home for several days.
It’s fitting, then, that the Supreme Court should hear argument today in Elonis v United States, a case involving arguably threatening posts on Facebook. The Supreme Court has held that “true threats” may be criminalized consistent with the First Amendment, although it has not defined the term “true threats” with any precision. The issue Elonis presents is whether a person can be convicted of making true threats if a reasonable person would have perceived the speaker’s statements as threatening, or whether, as Elonis argues, the government must also prove that the speaker subjectively intended to make a threat.
Elonis raises both a statutory and a constitutional question. Elonis was convicted under 18 U.SC. § 875(c), which criminalizes transmitting “in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” The statutory question, therefore, is whether § 875 requires the government to prove the defendant’s subjective intent to threaten. The constitutional question is whether the First Amendment requires proof of subjective intent to threaten. The Court could conceivably answer either or both questions in its opinion.
The Facts
Until May 2010, Anthony Elonis was married with two children and worked at a theme park near his family’s home. At that point, his wife, Tara, left him, taking their two children. Shortly thereafter, he was fired from his job: after a coworker accused him of multiple incidents of sexual harassment and he posted to Facebook a doctored picture of a knife being held against the woman who had accused him.
Elonis then posted a disturbing series of messages. He said of his former coworkers: “I have sinister plans for all my friends and must have taken home a couple [of keys].” About his ex-wife Tara, he posted: “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” Another post about Tara said: “If I only knew then what I know now . . . I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.” Yet another said: “So hurry up and die, bitch, so I can forgive you.” And another: “Revenge is a dish that is best served cold with a delicious side of psychological torture.” Tara eventually obtained a restraining order, but Elonis continued to post angry messages, often but not always in the form of rap lyrics, about her. She testified that some of these caused her to be “extremely afraid for [her] life.”
Elonis also posted statements about committing violent acts in the community. For example: “I’ve got enough explosives to take care of the state police and the sheriff’s department” and “I’m checking out and making a name for myself.” He added: “Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. . . . The only question is . . . which one?”
These statements attracted the attention of FBI agents. After speaking with a female agent at his front door, Elonis posted his fantasy of killing her: “Pull my knife, flick my wrist, and slit her throat. Leave her bleedin’ from her jugular in the arms of her partner.”
Elonis was convicted under 18 U.S.C. § 875 and sentenced to 44 months in prison followed by three years of supervised release. The Third Circuit affirmed.
Oral Argument
The transcript for oral argument, available here, reveals a lively bench with multiple questions from every justice except Justice Thomas.
Unsurprisingly, much of oral argument focused on the mental state the government must prove in order to convict a defendant. Counsel for Elonis argued that the government must prove that the defendant knew that a reasonable person would interpret his communication as a threat. This is a more demanding standard than recklessness, but less demanding than purpose or intent. When Justice Kagan pressed him on what would be wrong with a recklessness standard, counsel offered the example of “teenagers who are essentially shooting off their mouths or making ill-timed, sarcastic comments which wind up getting them thrown in jail.” He cited a recent incident in which a teenager made a joke in a video game chat room about shooting up a kindergarten; the teenager was held for four months before making bail and is still awaiting trial. If proving recklessness was sufficient, counsel argued, more similar events involving prosecution for making jokes would occur.
As articulated in its brief, the government took the position that the government need prove only that the defendant understood the meaning of his own communication and that a reasonable person would have viewed the communication as a threat. The government need not prove that the defendant intended, knew, or recklessly disregarded the fact that a reasonable person would have viewed the communication as a threat.
In more colloquial language, government counsel explained that the government opposed the “I was just kidding” defense—the claim that “it’s not a threat if somebody can say, hey, [I] didn’t really mean it, sorry, that wasn’t my purpose or intent.” The harm of threats is that they cause fear and disruption to society as a whole and to the specific individuals targeted by the threat, and this harm occurs regardless of the defendant’s subjective intent. If the target of a threat was reasonably fearful, it doesn’t matter to her whether the defendant was in fact kidding.
Several justices asked probing questions about whether it would be difficult to prove a defendant’s subjective intent. As Justice Ginsburg put it: “How does one prove what’s in somebody else’s mind?” Counsel for Elonis suggested several possibilities, including other documents, evidence that might be found on the defendant’s computer or other electronics, and statements the defendant made to other people. Justice Roberts seemed skeptical that any of these means would be sufficient to overcome a defendant’s argument that the allegedly threatening words were “just therapeutic” and that the Internet was merely an outlet for venting.
Both Justices Kennedy and Scalia expressed concern for prosecution of intermediaries. If person A sees person B make a threat concerning C on Facebook and A tells C about that threat, then can’t A be prosecuted under the criminal threats statute if there is no subjective intent requirement? Government counsel explained that a threat is “a statement that the speaker makes which on its face and in context would be understood as an intent to inflict harm,” while “repeating [the threat] doesn’t have that characteristic.” So the reasonable person would not understand A’s well-intentioned warning to C as a threat, even if B’s statement about C was a threat.
Multiple justices asked questions about the implications of the decision for domestic abuse. Justice Scalia commented: “I actually think that domestic abuse context is one of the best reasons for the Court not to add a scienter element that . . . eight out of ten regional courts of appeals have not done for decades.” Justice Alito, more bluntly, said to Elonis’ counsel that his proposed test “sounds like a roadmap for threatening a spouse and getting away with it. So you put it in rhyme and you put some stuff about the Internet on it and you say, I’m an aspiring rap artist. And so then you are free from prosecution.” And when Alito asked him outright how he would respond to amici who claimed that his position would “have a very grave effect in cases of domestic violence,” Elonis’ counsel stated that those amici naturally opposed a subjective intent requirement because it would make their cases harder to prove. Counsel also added a rather tone deaf comment that states that do use the subjective intent requirement don’t have “trouble protecting their populace from fear”—a statement with which some of the 2 million estimated annual victims of domestic violence would likely disagree. Neither side disputed the contention that adopting Elonis’ proposed standard would make it more difficult to convict the alleged perpetrator in at least some domestic violence cases involving threats.
Several of the amicus briefs discussed the particular qualities of rap as a form of expression, and the justices picked up on the theme. Chief Justice Roberts asked how one might distinguish lyrics of rappers such as Eminem from those for which Elonis was prosecuted. Counsel for the government again invoked the argument that context is key, and turned to the specific facts of the case. While people “have perfect freedom to engage in rap artistry,” they don’t “have perfect freedom to make statements like the ones in this case” where, after Elonis’ ex-wife received a protection order from a court based on Facebook posts that she understood as threatening, Elonis continued to make such statements. People go to an Eminem concert to be entertained, which distinguishes it from Elonis’ situation in which he suddenly adopted rap as a hobby and used rap to express violent statements.
A few questions also touched on the online context in which Elonis engaged in speech, although perhaps fewer than many onlookers who dubbed this the “Facebook threats” case would have anticipated. The questions primarily arose with respect to the role of the speaker’s audience in determining how a reasonable audience would interpret the speech. Counsel for the government explained that the speaker chooses her audience: “the speaker can communicate in a completely private manner on a Facebook page, the speaker can make certain aspects of the communication private, or the speaker can open it up more widely.” The nature of the audience then determines whether a reasonable person would be afraid: jokes among a few friends might be reasonably interpreted as sarcasm, while a wider audience might deserve a more serious response. Justice Roberts wondered whether a teenager who had a lot of Facebook friends would be held to a different standard than one who had just a few, and the government seemed to suggest that he would be—that such details would all go into the analysis of whether a reasonable person would perceive a threat in a particular case.
The Takeaway
Several of the justices seemed unsatisfied with the responses Elonis’ counsel gave to questions about how the government would go about proving a speaker’s subjective intent. Indeed, the standard for which Elonis advocates inherently leaves unpunished some threats that would cause disruption and fear in the life of an objectively reasonable target of those threats. So long as the government cannot prove that the speaker knew that the target would feel threatened, a jury could not convict under the test Elonis advocates. Justice Alito’s pessimistic comment about Elonis’ proposed test providing a “roadmap for threatening a spouse and getting away with it” might signal a larger concern: the justices may worry that Elonis’ proposed test provides a roadmap for threatening anyone online and getting away with it. Such concerns might lead the Court to adopt the reasonable person standard currently used in a majority of jurisdictions.
The Court seemed somewhat disinclined to treat online speech as significantly different from speech elsewhere. Commentators including Danielle Citron, Mary Anne Franks, and Eric Segall have argued that online speech is qualitatively different from offline speech and that the Court’s jurisprudence should take account of that fact. Some, including me, thought that the Court might be willing to go in that direction, particularly after last term’s decision in Riley v. California. In that case, Chief Justice Roberts wrote for a unanimous court that cell phones are simply different than other physical objects: “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” If the Court was willing to recognize that cell phones are simply different, then perhaps it might also recognize that online speech is simply different. Relatively few of the Court’s questions, however, related to the online character of Elonis’ speech.
Finally, a broad point about the Roberts Court’s First Amendment jurisprudence. Dahlia Lithwick has asked: “Is this the most pro-First Amendment court ever?” Today, several of the justices appeared skeptical of Elonis’ proposed subjective intent test, suggesting that the Court may break its lengthy string of pro-speech rulings. But even such a decision might be an aberration, rather than a new trend. As Justice Sotomayor observed: “We’ve been loathe to create more exceptions to the First Amendment.” Depending on the ultimate outcome, perhaps Elonis will be remembered most as an exception to the Court’s free speech jurisprudence rather than as a general rule.
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