In a narrow free speech ruling fit for the Facebook era, the Supreme Court on Monday made it a little harder to prosecute people for making threatening statements.
With nods toward rap music, the court in a 7-2 decision reversed the conviction of a Pennsylvania man whose Facebook postings sounded threatening to his estranged wife. The court said prosecutors needed to prove that more than negligence was needed for a conviction.
“Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state,” Chief Justice John Roberts Jr. wrote, adding that “wrongdoing must be conscious to be criminal.”
The central legal question was what determines whether a statement is a true threat that can be prosecuted. One potential test is whether a reasonable speaker would foresee that the statement would be interpreted as a threat. An alternative, harder-to-reach test would require proving a subjective intent to threaten.
The high court’s much-anticipated decision Monday did not clarify the standard, but instead stressed that state of mind mattered.
“The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error,” Roberts wrote.
The ruling, Roberts stressed, was not based on First Amendment considerations.
The case, Elonis v. United States, dates to a May 2010 domestic dispute, when Anthony Douglas Elonis’ wife of seven years moved out of their home with their two young children. Elonis subsequently began experiencing trouble at his job at the Dorney Park & Wildwater Kingdom amusement park in Allentown, Pa.
After Elonis was fired, his aggressive Facebook postings accelerated.
“There’s one way to love you but a thousand ways to kill you,” Elonis posted at one point. “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
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?”
Elonis characterized his postings as “fictitious lyrics” and likened himself to commercial rappers for whom “art is about pushing limits.” Elonis argued that the jury should have been required to find that he intended his posts to be threats.
The trial judge disagreed and Elonis was convicted on four counts of making threatening communications and sentenced to 44 months in prison. He was freed last year.
“Elonis’s conviction...was premised solely on how his posts would be understood by a reasonable person,” Roberts noted. “Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct, awareness of some wrongdoing.”
Justice Clarence Thomas dissented; as did, in part, Justice Samuel Alito.