What does SCOTUS think of online threats?: Predictions for US v. Elonis

By: Andrea Clavijo

Four years ago, thirty-one year old Anthony Elonis posted seemingly threatening content on Facebook about his wife, Tara, who had just left him. A self-proclaimed aspiring rap artist, Elonis’ posts detailed the pain he wished to inflict upon his estranged wife. In his defense, he maintained the posts were some of his original lyrics and that “venting” about his problems helped him to feel better.[1] Additionally, he asserted a First Amendment right to share his lyrics on social media in the first place.

Elonis’ estranged wife obtained a restraining order against him, but the posts continued. Both the District Court for the Eastern District of Pennsylvania and the Court of Appeals for the Third Circuit affirmed his conviction under federal law, which made it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.”[2] The Supreme Court granted review on June 16, 2014 on the questions of (1) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. 875(c) requires proof of the defendant’s subjective intent to threaten, and (2) whether, by virtue of the First Amendment, proof of a defendant’s subjective intent to threaten is required for conviction under Section 875(c).

Virginia v. Black tells us that the First Amendment protections do not extend to speech amounting to “true threats.”[3] True threats encompass those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.[4] The issue before the Court therefore hinges on how a factfinder should determine what kind of statements qualify as “true threats” – and, specifically, whether Elonis’ Facebook posts fall into that category.

Currently, the federal circuit courts of appeals are split as to the correct mens rea requirement necessary to prove a violation of the federal threat statute.[5] A majority of those courts require an objective test to determine true threats.[6] The objective test asks whether the average reasonable person would interpret the statement as reflecting a serious intent to harm someone.[7] Other courts add a subjective inquiry into the analysis of true threats.[8] The subjective test looks into the mind of the speaker to determine whether or not he personally intended to threaten anyone.

The Supreme Court of the United States will finally be settling this disagreement among the circuit courts. On December 1, 2014, the Supreme Court heard oral arguments. For the government, Deputy Solicitor General Michael Dreeben advocated for the objective test. Counsel for Elonis, John Elwood, instead argued in favor of the subjective test.

How will the court rule?

The Court will likely settle Elonis’ case with either criminal law or First Amendment lenses. It could statutorily evaluate the Model Penal Code to find whether or not Elonis is guilty, thereby avoiding the “true threats” confusion entirely. Or, the more likely avenue, the Court could resolve this under First Amendment jurisprudence. While an opinion in this case will not be published for a few more months, we can look to patterns and dialogue from the oral arguments to predict how each justice on the Court will likely vote. The entire transcript of the oral argument can be found here.[9]

Chief Justice Roberts: During oral argument, Roberts challenged the government’s theory, asking to consider the demographics of the “listeners” to an Internet rant. He notes that the definition of an “average reasonable person” differs across social media accounts because some users have a wide range of “friends” whereas others have a more narrow set. (33). Accordingly, the “friend” list of one user could react vastly different to a particular post from the “friend” list of another – so where is the line drawn? He also expressed particular concern about protecting the free speech rights of rap artists, and questioned whether an objective test would threaten the lyrical style of rap music, chilling creative expression by exposing artists to liability. (40). Given CJ Roberts’ mindfulness of the complicated diversity of audiences, I think he will be more in favor of a subjective test that will limit the number of speakers at risk of liability.

Justice Kennedy: From the beginning, Kennedy made clear that the term “true threats” is too vague for his liking. (4). Seeming to appreciate a more structured approach, I think he will vote in favor of the subjective test. Kennedy is a strong advocate of the “marketplace of ideas” (after all, he wrote the majority opinion for Citizens United), so I can see him agreeing with Roberts that a subjective test will be more protective of inculpable artists and free speech interests at large.[10]

Justice Ginsburg: More than providing answers, Ginsburg pressed Elwood over and over again about how exactly one can prove a genuine threat in the mind of another. (5).  She seemed skeptical of a subjective test and the hurdle to meet it – having asked Elwood three different times how to prove such a thing – so I suspect she will vote in favor of the government’s objective approach. (4, 5, 19).

Justice Breyer: If anyone is going to advocate for deciding this case on a statutory basis rather than on First Amendment doctrine, it will be Breyer.[11]  He questioned Elwood matter-of-factly on why the Model Penal Code could not decide the case. (12). Later, he was even more overt when he told Dreeben to “drop the First Amendment analysis” and view the issue from the standpoint of “hornbook criminal law.” (37). In brief, he seemed to take the position that Elonis’ status should be determined by demonstrating whether he had knowledge of the elements for the crime he was convicted for – transmitting in commerce a threat. As such, if Elonis did not know those elements, then he is “home free”. (12). I predict Breyer will write his own minority opinion – I don’t expect he’ll be able to convince four other justices to also drop the First Amendment analysis. As such, he’ll likely write specifically as to why it should have been determined narrowly under criminal law.

Justice Scalia: Arguably, Scalia’s biggest contribution to this oral argument came from a creative hypothetical he posed to Elwood – can a friend who warns a wife about how her husband wants to kill her be held liable for this same federal offense under the subjective test? As Scalia explained, if he adopted Elwood’s approach, the friend issuing the warning could be held liable for knowing that the information he communicated to the wife would reasonably put her in fear, even if he isn’t the one intending to kill her. (21). Scalia drove home the point that the purpose of the communication is critical. Near the end of the arguments, Scalia remarked that the speech in question is of “low value anyways.” (49). I think Scalia is unconvinced this speech deserves the extra protection a subjective test would create and will thus vote in favor of an objective test.

Justice Alito: The moral crusader among the justices focused his inquiry on congressional intent. (23) In contrast to Breyer, Alito questioned why mens rea is of any relevance to the issue at hand. (55). Instead, he is troubled by those who might fall victim to these Internet rants, particularly domestic violence victims. (60). He sounded almost disgusted with Elwood’s suggested subjective approach, calling it a “roadmap for threatening a spouse and getting away with it.” (59). Again, he placed more importance on the risk of a listener feeling harmed than he does on the risk of a speaker feeling curtailed – concerned that simply labeling oneself an “aspiring rap artist” could free one from prosecution. (59). I have no doubt Alito would strongly dissent from a majority that supports the subjective requirement (probably along with Scalia) and argue that this is bad speech that is harmful and objectively unworthy of First Amendment protection, a position similar to those he took in Snyder v. Phelps and United States v. Stevens.[12]

Justice Sotomayor: To date, Sotomayor hasn’t written much about First Amendment issues. However, based on her comments during oral arguments, she seemed averse to carving out a special rule for Elonis’ posts. She equated the government’s arguments to “quarreling” – taking issue that the government disagreed with defining a true threat as “when you intend to put another person in fear or that you know your words will cause a reasonable person to feel fear.” (31). She continued by explicitly stating that “[the Court has] been loathe to create more exceptions to the First Amendment.” As such, I anticipate her advocating for the continued deciding of First Amendment issues on a case-by-case basis rather than adding another category of unprotected speech. In fact, this view is summed up nicely on an article published by the First Amendment Center which describes Sotomayor as someone “more concerned with context than with concepts, more attentive to discerning facts than with announcing new doctrine, and one who is more focused on applying law than developing it.”[13]

Justice Kagan: From the beginning of oral arguments, we heard Kagan’s enthusiasm for finding middle ground to establish a clear standard. (9). She posed different solutions: using a recklessness standard (9), adopting the same test as fighting words (25), or even implementing buffer zones (46). Kagan’s hybrid approach seemed to suggest that a recklessness standard “would create a kind of ‘buffer zone’ that would provide more protection for speech than the government’s proposed rule, but at the same time would presumably avoid the kind of inquiry into the speaker’s subjective intent that Elonis would require.”[14] As such, I anticipate Kagan will, like Breyer, write a separate opinion advocating her new standard.

Overall, the justices themselves appear just as split as the circuit courts do. Should the Supreme Court follow the majority view of the circuits and adopt the objective test, a defendant could be found guilty of communicating a true threat even if he didn’t intend to communicate so. Someone who jokes or raps about a threat would be subject to liability if a reasonable person receiving the communication would understand those words to be threatening.



[1] Amy Howe, Drawing a line between therapy and threats: In Plain English, SCOTUSblog (Nov. 24, 2014, 3:31 PM), http://www.scotusblog.com/2014/11/drawing-a-line-between-therapy-and-threats-in-plain-english/

[2] Lyle Denniston, Argument preview: Social media as a crime scene,SCOTUSblog (Nov. 29, 2014, 12:03 AM), http://www.scotusblog.com/2014/11/argument-preview-the-social-media-as-a-crime-scene/

[3] Virginia v. Black, 538 U.S. 343, 359 (2003)

[4] Id.

[5] Paul Larkin and Jordan Richardson, True Threats and the Limits of First Amendment Protection, The Heritage Foundation (Dec. 8, 2014), http://www.heritage.org/research/reports/2014/12/true-threats-and-the-limits-of-first-amendment-protection – _ftn6

[6] See United States v. Hart, 457 F.2d 1087, 1091 (10th Cir. 1972)

[7] Amy Howe, Court difficult to read on Facebook threats: In Plain English, SCOTUSblog (Dec. 1, 2014, 6:57 PM), http://www.scotusblog.com/2014/12/court-difficult-to-read-on-facebook-threats-in-plain-english/

[8] See United States v. Cassel, 408 F.3d 622, 631 (9th Cir. 2005)

[9] References to specific page numbers of the oral argument transcript are listed in parentheses.

[10] Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 316 (2010)

[11] Lyle Denniston, Argument analysis: Taking ownership of an Internet rant, SCOTUSblog (Dec. 1, 2014, 2:13 PM), http://www.scotusblog.com/2014/12/argument-analysis-taking-ownership-of-an-internet-rant/

[12] Snyder v. Phelps, 562 U.S. 443 (2011); United States v. Stevens, 559 U.S. 460, 482 (2010)

[13] http://www.firstamendmentcenter.org/true-threats

[14] Amy Howe, Court difficult to read on Facebook threats: In Plain English, SCOTUSblog (Dec. 1, 2014, 6:57 PM), http://www.scotusblog.com/2014/12/court-difficult-to-read-on-facebook-threats-in-plain-english/