Supreme Court Requires Proof of Criminal Intent Even If Facebook Threats Are Obvious to a Reasonable Person
On June 1, 2015, in Elonis v. United States, ____ U.S. ___ (2015) (Docket #13-983), a case involving statements made on the Criminal Defendant/Petitioner’s Facebook page, the U.S. Supreme Court reversed the Third Circuit’s September 2013 ruling, which employed the “reasonable person” standard to determine whether a statement in a Facebook posting qualifies as a true threat. In ruling against the then defendant, Anthony Elonis, the Third Circuit concluded that a reasonable observer would view Elonis’s Facebook posts as true threats, leaving the intent of the speaker irrelevant to establishing liability. The Supreme Court, reversed, vacating the conviction and holding that the test for determining whether a statement can be deemed a true threat must involve the intent of the poster, since the conventional requirement for criminal conduct requires awareness of wrongdoing. The Supreme Court, however, failed to provide guidance to lower courts on how to assess intent, leaving the standard somewhat uncertain.
The Reported Facts
In May 2010, Elonis’s wife of seven years and their two children moved out of their house. Elonis was terminated from his employment at Dorney Park & Wildwater Kingdom after five sexual harassment reports, Facebook posts depicting him holding a knife to a coworker with the caption “I wish,” and repeated episodes of him being upset on the job. After the termination, he began writing Facebook posts involving his estranged wife, with vile and graphic descriptions of how he would have killed her “if I only knew then what I know now.” The FBI began monitoring Elonis’s Facebook postings after Dorney Park contacted the FBI claiming he had posted threats against it.
Elonis was convicted by a jury of multiple counts of violating 18 U.S.C. § 875(c) for posting threatening comments on his Facebook page. At trial, Elonis moved to dismiss the charges against him, claiming that pursuant to Virginia v. Black, 538 U.S. 343, 347–48 (2003), a subjective intent to threaten was required to meet the true threat exception to the First Amendment. This motion was denied, as the court held that Elonis’s eligibility to meet the true threat standard was a question for the jury. United States v. Elonis, No. 11-13, 2011, WL 5024284 at 3 (E.D. Pa. Oct. 20, 2011). The jury ultimately convicted him on five counts involving threatening statements made to his wife, law enforcement and a kindergarten class. He was sentenced to 44 months in prison. Elonis filed post-trial motions to dismiss the indictment, a motion for a new trial and a motion to arrest judgment, all of which were denied. United States v. Elonis,897 F.Supp. 2d 335, 346 (E.D. Pa., 2012).
Court of Appeals Ruling
On appeal to the Third Circuit, Elonis argued that for a statement to be considered a true threat, the speaker must intend to communicate the statement and intend for it to threaten the victim. United States v. Elonis, 730 F.3d 321, 329 (3d Cir. 2013). According to Elonis, subjective intent is required. Elonis’s arguments were ultimately rejected; the Third Circuit held that the framework for determining a true threat is whether a reasonable observer would believe that the speaker intended the message to be threatening. Because a reasonable jury could conclude that Elonis’s remarks, such as “the next time you knock, best be serving a warrant, and bring [your] SWAT team and an explosives expert,” could be considered threats, his conviction was upheld.
Supreme Court Ruling
Chief Justice Roberts, writing for the majority, deemed the reasonable person standard unfit to determine the outcome of the case at hand. Justice Roberts asserted that the reasonable person standard is inconsistent with the fundamental requirements of criminal conduct – knowledge of wrongdoing. Further, the Supreme Court found that the Third Circuit ruling essentially reduced the culpability standard to negligence. The Court noted that this outcome contradicts the legislative intent of criminal law statutes.
Justices Samuel Alito and Clarence Thomas dissented and attacked the majority for not going far enough to guide the lower courts. While the Court rejected the reasonable person standard, it did not clearly outline the standard to be applied in future cases. It leaves open the question of whether the only relevant factor to be considered is if the speaker intended the posting to be a threat.
Impact of Ruling
Courts that must confront these matters are now left with uncertainty as to the standards to apply. Courts may look to their prior decisions with mixed results. In the Third Circuit, courts may look to United States v. Stock, 728 F.3d 287 (3d Cir. 2013), which noted that a threat under § 875(c) is a communication “expressing an intent to inflict injury in the present or the future.” In Stock, the court upheld the decision to deny the defendant’s motion to dismiss the indictments against him, ruling that his postings on Craigslist intended to inflict present or future injury.
In United States v. Jeffries, 692 F.3d 473 (6th Cir. 2012), the Sixth Circuit Court ruled that the defendant was liable for posting a video on the Internet of him singing a song addressed to the judge handling his child custody case. The Sixth Circuit reasoned that a reasonable juror could conclude that the video intended a threat to inflict bodily harm. This ruling, which relied on the reasonable person standard, might not stand under the Elonisruling without some other indicia of intent.
In United States v. O’Neill, 680 F.Supp. 2d 255 (D.C. ME 2010), the court ruled that the appropriate standard under which the defendant can be found liable for telephone calls made to a U.S. senator is whether the defendant should have reasonably foreseen that the statement uttered would be taken as a threat to the audience. Thus, subjective intent was not relevant to the court’s analysis. During the phone calls, the defendant stated that he would put a bullet in the senator’s head and wanted to kick a staffer’s teeth. The court ultimately ruled that the phone calls were not protected by the First Amendment. Without showing the defendant’s intent by some other means, this scenario might not be held sufficient to sustain a conviction.
The aforementioned cases indicate that the Elonis rule rejects precedent but does not provide a clear-cut standard to be applied in future cases. Justice Alito wrote in his dissenting opinion that “the court’s disposition of this case is certain to cause confusion and serious problems.” It remains to be seen how the courts will handle these cases going forward so that online posters cannot hide behind claims of “no intent” after terrorizing someone with what reasonable people might clearly see as veiled threats. For now, unless the prosecutors can otherwise prove intent, the playground chant may govern – “sticks and stones may break my bones, but names will never harm me.”
Online posters, however, still must be aware that (1) civil liability does not require the same standard and they can be exposed to civil claims and sanctions and (2) there exists the potential for incarceration if injunctions are issued and ignored. As such, the method for dealing with online threats may change so that the victim is leading the charge. Whether this will be sufficient to deter such conduct remains to be seen.
NOTE: Shira Sandler (Summer Law Clerk-New York) assisted in researching and drafting this Alert.