Guest Blog: Nancy Leong, The Anticlimax of Elonis v. United States

The Supreme Court’s opinion in Elonis v. United States, released last week, was something of an anticlimax. While eight Justices believed that Elonis’ conviction should be reversed and seven signed onto a majority opinion by Chief Justice Roberts, the Court left unanswered important questions about online threats, the importance of the speaker’s state of mind, and the First Amendment.

As I wrote previously, the case involved a man, Anthony Elonis, who made violent statements on Facebook about his wife, coworkers, law enforcement officers, and other members of the community. The question at the center of the case was whether the government had to prove that Elonis intended to threaten others, or whether it was enough that reasonable people would have felt threatened by his statements. Such intent might be required either by the interstate threats statute under which Elonis was convicted, 18 U.S.C. § 875(c), or the First Amendment.

Yet the Supreme Court simply did not decide most of the issues central to the case. Chief Justice Roberts’ majority opinion stated explicitly: “it is not necessary to consider any First Amendment issues.” Moreover, the Court declined to say what mental state was required by section 875(c) itself. It made clear that negligence is insufficient to support a conviction under section 875(c), but explicitly declined to address whether intent to threaten is required, or whether a lesser state of mind, such as recklessness, might suffice. The Court’s decision — eagerly anticipated by stakeholders across the board — therefore left the most pressing questions for another day.

Not all the justices were happy about this approach. Justice Alito observed in a separate opinion: “The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. § 875(c).” He added: “While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free.” He concluded: “We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.”

At least with respect to the immediate after-effects of Elonis, Justice Alito’s argument seems almost certainly to be correct. The Court’s extremely narrow decision fails to determine the fate even of Elonis himself. Should the Third Circuit, which upheld Elonis’ conviction, treat the omission in the jury instruction as harmless error, given the malicious intent many see in his violent Facebook posts? Or would convicting him of violating § 875(c) require a new trial? Would the jurors at such a trial need to be instructed that conviction requires only recklessness, or would an instruction on some heightened mental state be required? Would such a trial result in unconstitutional double jeopardy? And what role would the First Amendment play in future proceedings?

Perhaps the most frustrating aspect of the opinion for judges, advocates, and ordinary citizens alike is the Supreme Court’s parsimonious attitude with respect to offering helpful guidance. Justice Thomas’s dissent observes that after Elonis, lower courts must “guess at the appropriate mental state” required for conviction under 875(c). He noted that nine federal appeals courts had held that demonstrating reasonable fear on the part of the target of the speech is sufficient for conviction under 875(c); the Supreme Court held that such a standard was not enough but “leaves nothing in its place.” As Roberts observed, it’s true that the Supreme Court generally waits for a relevant lower court decision and briefing from the parties, but arguably both were present here — indeed, at oral argument Justices Kagan and Breyer both specifically asked about a recklessness standard.

Thus, the Court appears to have gone out of its way to avoid providing useful guidance in Elonis. One might hope that in future cases the Supreme Court will be less timid about its “duty . . . to say what the law is,” particularly when the freedom, safety, and constitutional rights of its citizens are at stake.

Picture Credit:http://all-free-download.com/free-vector/vector-misc/simple_facebook_and_twitter_buttons_120149.html