Intent matters. On June 1, 2015, the United States Supreme Court reversed the Third Circuit's decision and held that online comments cannot be considered a threat absent the requisite intent of the speaker. Elonis v. U.S., Slip Opinion No. 13-983, 575 U.S. ___ (2015). As explained in an earlier article, Elonis would have been the first case to evaluate whether violent images and threatening language in the form of rap lyrics constitute a "true threat" to others, or are protected speech under the First Amendment. The Court, however, disappointed many by finding it "unnecessary to consider any First Amendment issues." Instead, the Court found that, pursuant to 18 U.S.C. §875(c), "'what [Elonis] thinks' does matter."
Anthony Elonis – a/k/a Tone Dougie – was sentenced to forty-four months in federal prison for posting sadistic rants on his Facebook page against his estranged wife, co-workers and others. He often posted disclaimers that the posts were fictitious rap lyrics, and that he used his writing as a form of therapy to work through the pain of his personal problems. His estranged wife, on the other hand, disagreed and said that she feared for her safety and the safety of their children.
Elonis was convicted under 18 U.S.C. §875(c), which makes it "a federal crime to transmit in interstate commerce 'any communication containing any threat . . . to injure the person of another.'" The District Court declined to grant Elonis' motion to dismiss the indictment for failure to allege that he intended to threaten anyone. The trial court also declined to adopt Elonis' proposed jury instruction that the government must prove that Elonis intended to communicate a true threat. The Third Circuit affirmed, and held that "the intent required by Section 875(c) is only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat."
The Supreme Court reversed and remanded the case. Chief Justice Roberts, writing for the 7-2 majority, relied on long-standing criminal law principles. Specifically, the Court stated that, "The 'central thought' is that a defendant must be 'blameworthy in mind' before he can be found guilty . . . . We therefore generally 'interpret criminal statutes to include broadly applicable scienter requirements . . . . ." The Court further discussed the distinction between civil and criminal law, and reminded the parties that the Court has "long been reluctant to infer that a negligence standard was intended in criminal statutes.'"
Interestingly, the Court did not address the medium in which the relevant communications were made – social media. Query whether Elonis' use of Facebook would have made a difference had the Court reached the First Amendment issues? Although the Court has shown recently that it is disinclined to alter the landscape of longstanding legal principles in light of rapidly evolving technology, social media's influence on how Americans communicate – individually and commercially – is tremendous. While the Court's decision in Elonis is instructive, it leaves in its wake several unanswered questions regarding free speech in the digital age.