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SCOTUS treads lightly on internet threats

SCOTUS treads lightly on internet threats

Free speech on social media, still up for discussion

Remember Anthony Elonis? He was sentenced to four years in federal prison after he posted original rap lyrics and other content concerning his wife, co-workers, a kindergarten class, and even a federal agent. A lower court held that Elonis’ posts constituted a “true threat” against those mentioned in his rants, and he served more than three years of his sentence before being released.

At controversy in the ensuing lawsuit was the prosecutor’s use of a low-hanging, “reasonable person” standard in his instructions to the jury. The Court had never specifically ruled on whether or not a prosecutor must show intent to carry out verbal or written threats in order to get a conviction; lower courts are split, with most requiring enough evidence to show that a reasonable person would see or hear the speech and believe that it is “a serious expression of an intention to inflict bodily injury or take the life of an individual.”

In today’s ruling, the Supreme Court held that requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under the statute that governed Elonis’ alleged crimes.

Negligence isn’t enough—but what is? In the opinion Roberts said that the conviction would have been upheld if the jury had found that Elonis knew or should have known that his posts would be seen as threats. The Court, however, declined to define a standard. We’re still going to see cases moving forward under the “true threat” theory defined in the same law used to convict Elonis, but how should the jury instructions read?

SCOTUSblog goes in-depth:

Anthony Elonis’s conviction for violating the threats law was explicitly overturned with the support of eight Justices; only Justice Clarence Thomas would have upheld the guilty verdict at this point. However, only seven Justices backed the majority opinion, because Justice Samuel A. Alito, Jr., would have reversed the verdict but also argued that it could have been upheld on another theory.

That alternative theory is that a person is guilty of making a threat by the Internet (or other communications) if the violent words were uttered recklessly — that is, knowing that he was taking a legal risk, but disregarding it. The main opinion in Elonis’s favor, written by Chief Justice John G. Roberts, Jr., did not endorse that theory and in fact did not decide it, on the ground that it was not actually an issue in the appeal.

Justice Alito’s opinion on the recklessness point appeared to have been worded as if he wished it could have been applied in Elonis’s case, but actually was not. It is not clear whether the lower court in this case — the U.S. Court of Appeals for the Third Circuit — could now apply that theory to this verdict, or whether Elonis’s case is actually over. It is also not clear whether the Third Circuit could now apply another theory that Alito’s opinion raised: that the flaw in the jury instructions in Elonis’s trial could be excused as “harmless error.”

As Roberts said elsewhere in the opinion, we enjoy a longstanding tradition of not using the low standard of negligence to show guilt for a crime. “Wrongdoing must be conscious to be criminal,” but for now we’re not sure just how conscious is conscious enough, or how they would have ruled had any real First Amendment issues come up as a question of law.

Brace yourselves—those questions are coming. We’ll keep you updated when they do.

You can read the full opinion here.


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The Court did not address the underlying First Amendment issue — and many observers think the Court punted. They did intend to punt. Yet the holding could still have far ranging implications. They wrote:

Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of “awareness of some wrongdoing

There are many criminal statutes that could be touched upon by this ruling.

    platypus in reply to sequester. | June 2, 2015 at 10:19 am

    EXACTLY! Not to mention the Ethics Rules for Attorneys.

    I was wondering whether I was reading too much into that portion. Also, I found it intriguing that it was a per curium opinion. A cynic would say it looks like none of the justices wanted their John Hancocks on it.

Not A Member of Any Organized Political | June 1, 2015 at 7:34 pm

FYI – Does fear of leftist bullies skew polls, social media?

Carol Herman | June 1, 2015 at 8:50 pm

Who sits on the Supreme’s? 6 Catholics. And, 3 Jews.

I just hope one or two don’t drop off while Obama is still the president. pResident?

Threats have never been free speech. It will always be a case by case basis to determine if a threat is credible or just blowing off steam.

    platypus in reply to Paul. | June 2, 2015 at 10:25 am

    Yes but this threat(s) was credible. It not only looked like a threat but his ex testified she was threatened by it. Putting aside the anecdotal notion that the ‘victims’ of threats exaggerate the effects, all the courts (including the Supremes) agreed that the facts of this case fulfilled the law’s requirements so that he was guilty IF THAT WAS THE END OF THE INQUIRY.

    The Supremes said they forgot to prove one thing – a criminal state of mind – and because that thing was missing, he had to go free.