Litigation

High Court Considers Whether Conviction For Threats Requires An Intent Showing

WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on Dec. 1 heard oral arguments over whether a conviction for making threatening communications under 16 U.S. Code Section 875(c) requires a showing of intent to harm by the speaker (Anthony Douglas Elonis v. United States of America, No. 13-983, U.S. Sup. [lexis.com subscribers may access Supreme Court briefs for this case].)

(Transcript available.  Document #24-141218-003T.

Facebook Postings

On Oct. 17, 2010, Anthony Elonis of Topton, Pa., was fired from his position at Dorney Park and Wildwater Kingdom amusement park in Allentown, Pa., after exhibiting “troubling behavior.”  On that day, Elonis posted a picture of himself in costume holding a knife to the neck of a female co-worker, who had reported him for sexual harassment. 

Ten days later, Dorney Park’s chief of park patrol contacted the FBI to report “disturbing” and “threatening” statements that Elonis had posted on his Facebook page about various ways that he could retaliate against park personnel for his termination.  In his Facebook postings, Elonis made statements about being a “nuclear bomb” and that he had plans to return to the park and had “sinister plans” for his friends there.  Elonis also mused about killing police officers, an FBI agent, children in an unidentified elementary school and his estranged wife. 

Conviction And Appeal

The FBI arrested Elonis on Dec. 8, 2010.  A month later, a grand jury in the U.S. District Court for the Eastern District of Pennsylvania returned a five-count indictment against him for making threatening communications in violation of Section 875(c), which criminalizes the transmission of “any communication containing any threat to kidnap any person or any threat to injure the person of another.” 

After a three-day trial, a jury found Elonis guilty of the four counts under Section 875(c).  Judge Lawrence F. Stengel held that reasonable people could see Elonis’ statements as true threats, noting that the people that were the subject of those threats saw them as such.  The judge also rejected Elonis’ arguments that Section 875(c) is impermissibly vague and unconstitutional.  Elonis was sentenced to 44 months’ imprisonment followed by three years of supervised relief. 

The Third Circuit U.S. Court of Appeals affirmed the ruling in September 2013.  The appeals court found that Judge Stengel correctly declined to instruct the jury to use a subjective intent standard.  The appeals court found that the First Amendment permits criminal punishment for a communication that qualifies as a “true threat.” 

Questions Presented

On June 16, the Supreme Court granted Elonis’ petition for certiorari.  The court directed the parties to brief on Elonis’ presented question of “[w]hether, consistent with the First Amendment and Virginia v. Black” (538 U.S. 343 [2003]) [enhanced opinion available to lexis.com subscribers], “conviction of threatening another person requires proof of the defendant’s subjective intent to threaten; or whether it is enough to show that a ‘reasonable person’ would regard the statement as threatening,” as held by the District Court and Third Circuit. 

In addition, the high court directed the parties to brief and argue “[w]hether, as a matter of statutory interpretation, conviction of threatening another person under [Section 875(c)] requires proof of the defendant’s subjective intent to threaten.” 

Amicus curiae briefs were filed in support of both sides.  

Crime Of Pure Speech

In his merits brief, Elonis says that in Black, the high court held that constitutionally protected “true threats” are “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence” on someone.  Thus, he says that the trial court erred in finding it irrelevant whether he actually intended to threaten someone, but instead focusing on whether someone might interpret a statement as a threat.  The court also erred in declining to present the question of his intent to threaten to the jury, Elonis argues. 

In Reno v. ACLU (521 U.S. 844, 871-72 [1997]) [enhanced opinion], Elonis notes that the Supreme Court found criminal prohibitions on pure speech to be “matters of public concern” under the First Amendment because ‘[t]he severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images.” 

And in New York Times Co. v. Sullivan (376 U.S. 254, 288 [1965]) [enhanced opinion], Elonis argues that the high court held that “negligence . . . is [a] constitutionally insufficient” standard for imposing liability for speech.  As was explained in Rogers v. United States (422 (U.S. 35, 47-48 [1975]) [enhanced opinion], “[i]n essence, the objective [threat] interpretation embodies a negligence standard, charging the defendant with responsibility for the effect of his statements on his listeners,” Elonis says. 

These cases illustrate that “a standard that punishes a speaker for negligently failing to foresee how listeners would perceive his statements, irrespective of his intent in speaking, would deter a broad array of protected expression,” Elonis argues.  However, he states that the high court does not need to consider the Third Circuit’s interpretation of Section 875(c) because “[s]traightforward principles of statutory construction compel the conclusion that the provision prohibits only intentional threats.”  The District Court’s failure to present the intent question to a jury constituted legal error that caused him to be convicted “for a crime of pure speech,” Elonis says.   This necessitates an overturning of the District Court’s and Third Circuit’s judgments, he argues. 

True Threats

In its response brief, the government says that Elonis “made true threats that violate Section 875(c)” because “[h]e was aware of the meaning and context of his Facebook posts, and those posts communicated a serious expression of an intent to do harm.”  And even if, as Elonis contends, he “subjectively intended his posts to carry a different meaning, those beliefs did nothing to prevent or mitigate the substantial fear and disruption that his threats caused,” the government says. 

 Per Watts v. United States (394 U.S. 705, 708 [1969]) [enhanced opinion available to lexis.com subscribers], the government said that, under Section 875(c), it needed only to prove that Elonis made a “true threat,” which constitutes “statements that a reasonable person would interpret as a serous expression of an intent to do harm.”  Such an intent is determined within a statement’s context “and interpreted in light of listener reactions,” the government says, while clarifying that the statute “does not make subjective intent to threaten an element of the offense.”  

The government further argues that the First Amendment also “does not require an intent-to-threaten element” and that “[t]rue threats have traditionally been treated as a category of unprotected speech.”  Per Black, the government says that “[w]hatever slight expressive value might be seen in phrasing an idea in the form of a true threat, it is categorically outweighed by the compelling governmental interests in ‘protect[ing] individuals from the fear of violence’ and ‘from the disruption that fear engenders.’”  Thus the government says that Elonis was validly convicted of making true threats without the need to prove a subjective intent to threaten.  

Context And Intent

At the start of oral argument by John P. Elwood, on Elonis’ behalf, Justice Anthony M. Kennedy questioned whether “true threat” was the best term, calling it “a most unhelpful phrase.”  Elwood agreed, and then pointed out that until relatively recently, “American threat statutes required . . . proof of subjective intent to place the listener in fear.”  Justice Ruth Bader Ginsberg questioned him as to how “one prove[s] what’s in somebody else’s mind.”  Elwood argued that context was the most important element.  Justice Sonia Sotomayor suggested that the jury was trying to do just that in considering how a reasonable person would interpret Elonis’ statements.  

Noting that part of Elonis’ defense was that his Facebook diatribes were “therapeutic,” Chief Justice John G. Roberts Jr. asked whether defenses that speech is “therapeutic” or “art” are valid.  

Elwood clarified that a key element is whether the speaker is on notice that the recipient of a message is in fear.  “[I]f he knows that she is in fear, he doesn’t have a right to continue on,” Elwood said, stressing that “an intent to cause fear” is necessary for a Section 875(c) conviction.  

Responding to questions from the justices about how a speaker’s negligence or recklessness should be considered in the situation, Elwood again stressed the importance of the context of the recipient of a message, stating that in similar cases regarding online speech, teenagers have faced legal problems “for shooting off their mouths or making . . . ill-timed sarcastic comments” that were misinterpreted.  Elwood stressed that the intent requirement is better than the government’s “very low standard” that offending speech merely “has to reasonably put somebody in fear.”  

Accountability

Deputy Solicitor General Michael R. Dreeben, arguing on the government’s behalf, stated that “true threats” are those that “cause fear and disruption to society and to the individuals who are targeted.”  Thus, Dreeben said that Section 875(c) has a mens rea component “that the individual has to know and understand what the individual is saying.”  What the government wants, Dreeben said, “is a standard that holds accountable people for the ordinary and natural meaning of the words that they say in context.”  

The justices questioned whether such intent requirements could be met by a speaker who claims to have been drunk or, as in the present case, asserted that the controversial speech was part of an amateur rap.   Dreeben said that one has to look at “the expression and the context” to determine “did the individual know what he was doing?”  

Counsel

Elonis is represented by Elwood and Ralph C. Mayrell of Vinson & Elkins in Washington; Ronald H. Levine and Abraham J. Rein of Post & Schell in Philadelphia; Daniel R. Ortiz of the University of Virginia School of Law Supreme Court Litigation Clinic in Charlottesville, Va.; David T. Goldberg of Donahue & Goldberg in New York; and Mark T. Stancil of Robbins, Russell, Englert, Orseck, Untereiner & Sauber in Washington. 

The government is represented by Solicitor General Donald B. Verrilli Jr., Assistant Attorney General Leslie R. Caldwell, Dreeben and Assistant to the Solicitor General Eric J. Feigin of the U.S. Department of Justice in Washington. 

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