Sunday, December 15, 2019
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Online threats depend on intent of speaker

In the Supreme Court of the United States, justices ruled 8-1 that prosecutors must do more than prove that reasonable people would view statements as threats, the New York Times reports. The defendant’s state of mind matters, Chief Justice John G Roberts Jr wrote for the Court, but he never made it clear where the exact line should be drawn between illegal threats and free speech.

The ruling hinged more on the difference between committing a “crime” and assuming some sort of “civil liability” or “responsibility” for your actions. You can be responsible in a civil case for harm you cause to another person if you act with negligence, for example. However, this ruling confirms that to be convicted of a “crime,” the prosecution must prove you intended to cause the harm you’re being accused of causing.

The majority opinion in Elonis v United States had very little to do with free speech, where the intent of the speaker carries much less weight than the possible reaction the words could evoke in reasonable people. The idea of the defendant’s intent is usually only called upon in criminal cases, which this was. Seven of the nine justices agreed with that part of the ruling.

The case involved Anthony Elonis, a man from Pennsylvania who was known as the rapper Tone Dougie. He posted rap lyrics on Facebook that threatened his ex-wife, law enforcement personnel, and schools. Mr Roberts said his posts were “crude, degrading, and violent.”

His exact comments were as follows:

  • “Hell hath no fury like a crazy man in a kindergarten class.”
  • “Pull my knife, flick my wrist, and slit her throat,” referring to an FBI agent.

His status updates on Facebook also said he wanted to see his ex-wife’s head “on a stick.”

He was found guilty of the federal crime of sending a message threatening harm to others. But he testified that he never intended to threaten anyone. The trial judge, however, told the jury not to consider his intent. Furthermore, he said his posts were just part of his “on-line persona” and were “therapeutic.”

The government countered that a reasonable person would feel threatened by the comments he made and that they should, therefore, not fall under the First-Amendment protections of free speech. The US Court of Appeals for the Third Circuit agreed, but the Supreme Court never even considered the First-Amendment question, ruling that the conviction was invalid on statutory grounds alone.

A conviction for a crime, Mr Roberts wrote, has to have more proof of intent than just how the person’s words would be understood by another reasonable person, which defines the legal standard known as “negligence.” Prosecutors must prove, the opinion said, that the defendant was aware that he had done something wrong. Yes, it’s illegal to threaten someone, but those laws are only “satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.”

This makes the words themselves somewhat irrelevant, which is not common in US First-Amendment law. The First Amendment, though, is usually part of civil cases; criminal cases like this one must be held to a different standard, the Court wrote.

Justice Samuel A Alito Jr voted with the majority in the overall opinion, but he also indicated he might have upheld the conviction under an alternative theory. A person may be found guilty of a crime, he wrote, if he makes a threat on the Internet or any other communication device and utters his words “recklessly.” In the legal world, recklessness is when you know you’re taking a legal risk, but you completely ignore that legal risk.

Also, even though the comments were made on Facebook, social media had very little to do with the final ruling. I must say, though, if the comments had been written in a letter and delivered to Mr Elonis’s ex-wife through the mail, different questions might have come into play on statutory grounds. Simply put, posting status updates the whole Facebook user community can see isn’t the same thing as pointing comments at a single person or group of people.

Justice Clarence Thomas, who was the only dissenter among the nine justices, said the decision makes a mess of things. “This failure to decide,” he wrote, referring to the majority’s ruling that proving intent is sometimes required in criminal cases, “throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”

By the “failure to decide,” Mr Thomas was referring to the fact that the Court never answered the question of whether threatening language, like that written by Mr Elonis, would be protected under the First Amendment. It never even addressed the question.

Applying this decision, perhaps to cyberbullying laws

Now, we fear, people will post rap lyrics on Facebook to bully peers and, even though they don’t exactly have a recording contract, claim their intent was not to bully an actual person but to try out some new lyrics. But in the end, a lot of those status updates probably are trial rap lyrics by a wannabe rapper. And anyway, that’s what the Court decided.

I don’t often find myself agreeing with Justice Thomas and disagreeing with the other eight justices, but here I do. It’s just not possible to know someone’s intent when he makes a threat or utters violent words. Sometimes “I’m going to kill you” means what it literally says; sometimes it means I’m just going to storm out of the room and blow off steam. Our laws have to allow us to protect people who receive credible threats by which a reasonable person would feel threatened.

On the other hand, I agree that “crime” requires intent and knowledge of wrongdoing. The Supreme Court expressed no opinion as to whether Mr Elonis was guilty or not guilty here. The majority ruling simply says his conviction violated criminal statute because the judge told the jury not to consider the intent of the defendant in their deliberations. That intent, it must be noted, was based entirely on the defendant’s own testimony.

But this opens up a can of worms that I fear will have a strong impact on state laws that concern cyberbullying, especially if bullies think the Supreme Court acquitted Mr Elonis, which it definitely did not do. Prosecution has to be based on evidence, on facts. It can’t rely on opinion, and what Mr Elonis “meant,” however innocent that meaning may have been, doesn’t nullify the fact that the comments, as posted, are threatening.

I suspect, if Mr Elonis is ever retried—despite having already served his time—a jury would reach the same guilty verdict, since his words provide a strong clue as to his intent. The only fact here, the actual evidence in this case, is the precise wording of what he wrote. Considering that evidence instead of disregarding it, jurors could still conclude he had an intent to threaten people based on the words themselves, regardless of what he claims his words meant.

Finally, we observe in passing that “stand your ground” laws are based entirely on how the person who fires on an unarmed individual feels. If someone feels threatened by another person, he can shoot that other person and use self-defense in some states as a shield against prosecution for murder. If it is now necessary to prove the actual intent—in these cases of a dead person—does that nullify all the “stand your ground” laws on the books in so many states?

Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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