Online threat or mere Facebook folly? SCOTUS' review of Elonis v. U.S.

Just last week, on June 1, the United States Supreme Court ("SCOTUS") decided Elonis v. U.S., which involved an analysis of the federal threat statute, 18 U.S.C. § 875(c). In Elonis, the defendant was charged with five counts of violating § 875(c) based on the following posts on Facebook, as alleged (and summarized here) in each respective count of the indictment:

The defendant was found guilty of all five counts. He challenged his conviction on two grounds: (1) the mental state required on the part of the defendant, at the time the threat is made, to secure a conviction under § 875(c); and (2) whether the statute violates the First Amendment if it requires anything less than proof of knowledge. Clearly, the answers to both of these questions are of extreme importance in a society where people, and not just young people anymore, but anyone and everyone seems to post things on Facebook with reckless abandon and disregard of real world consequences.

Unfortunately, in typical SCOTUS fashion, the Court decided to answer only part of the first question, and not any of the second. The judge in the trial court instructed the jury that it need only find that a "reasonable person" would have found the posts to contain a threat in order for the mens rea (fancy legal speak for "guilty mind") element to be satisfied. This is the lowest mental state possible under the law (next to strict liability, which are laws in which an individual can be found guilty regardless of his or her mental state, common examples of which are statutory rape laws where the perpetrator is held responsible even if he reasonably believes his "victim" was of an age of consent) and is called criminal "negligence." In overruling the trial court and reversing the convictions, SCOTUS simply held this was an insufficient mental state under the applicable statute, and ended their analysis there. This essentially leaves it to the lower courts to work out whether the statute requires recklessness (i.e. whether the defendant intentionally disregarded a risk that a reasonable person would likely find the post to contain a threat) or a higher standard of knowledge (i.e. whether the defendant believed to a substantial certainty that the post contained a threat).

What is worse, SCOTUS never addressed the First Amendment issue. Based on the Court's ruling, we know the statute requires at least recklessness, but we don't know whether it might require knowledge, or whether the First Amendment, itself, requires knowledge. The result of this is to leave all those aspiring rap artists, fantasy role-players, internet existentialists, or just plain cyber-jokesters (okay, cyber-Bozos) out there to wonder whether the songs, ideas or stupid comments they are posting on the internet could result in a criminal convictions, even if they honestly believe them not to contain a threat or to mean any harm (but who disregards a risk that someone might think they contain a threat). Justice Samuel Alito, in his concurrence (in part), said it best: "In Marbury v. Madison… the Court famously proclaimed: 'It is emphatically the prov­ince and duty of the judicial department to say what the law is.' Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not." In other words, in Elonis, SCOTUS' message is we won't tell you what you can do on the internet because we've decided not to tell you what you can't. That's not only enough to cause some serious head scratching for cyber and internet enforcement police looking for bright-line guidance, but also enough to cause bewildered parents to start tugging at the roots of their own hair. Hey SCOTUS… A little more help here next time?

If you have this type of case contact Brad Bailey one of the top criminal defense lawyers in Boston.