Editor’s Note: The Supreme Court heard the most high profile First Amendment case of the current term in Elonis v. United States. In an extended blog post about the case, Richard Lempert explores the facts of the case, what it means for First Amendment case law, and the details of the hearing before the High Court.
The First Amendment’s contours and the speech it protects owe a lot to people whom it is hard to admire: Neo-Nazis parading through a Jewish neighborhood, teenagers welcoming a black family to their neighborhood with a burning cross, a man whose jacket says “Fuck the Draft,” sleazy entrepreneurs peddling sex films, religious fanatics at military funerals hoisting signs saying “God hates you,” hooded Klansmen threatening violence because the government is suppressing the Caucasian race. These people and others like them have played an outsized role in defining the First Amendment freedoms we enjoy and setting the boundaries of permitted expression. Anthony Elonis, whose case was recently heard by the Supreme Court, may be about to join them.
Elonis v. United States: The Facts of the Case
Elonis was convicted on four separate counts for Facebook postings that allegedly violated a federal statute that provides in part: “Whoever transmits . . . any communication containing . . . any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” The postings grew out of a bitter break-up with Tara Elonis, his wife of seven years, who in May of 2010 fled the relationship with her two children. In October 2010, after having lost his job arguably due to another Facebook posting, Elonis’s musings became darker and more vitriolic. Most disturbing were several posts in which he wrote graphic threats involving the rape and murder of his ex-wife. (A link to some of the actual text of these comments is available here.)
Fearful after reading these statements, Tara Elonis secured a protective order, but rather than dampening Elonis’s verbal aggression, the order appeared to spur it on. Keeping his Facebook page but changing his Facebook name to a pseudonym, he posted a commentary that began:
Did you know that it’s illegal for me to say I want to kill my wife?
It’s indirect criminal contempt.
It’s one of the only sentences that I’m not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife.
I’m not actually saying it.
Um, what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that’s its own sentence.
I also found out that it’s incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room.
and continued in this vein.
This posting was cited in Count 2 of the indictment. (Count 1, an alleged threat to a coworker, does not figure in the Supreme Court case because Elonis was acquitted on this count.) Eight days later the protective order (PFA) itself was the target:
Fold up your PFA and put it in your pocket Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place Me thinks the judge needs an education on true threat jurisprudence
And prison time will add zeroes to my settlement
Which you won’t see a lick
* * *
And if worse comes to worse
I’ve got enough explosives to take care of the state police and the sheriff’s department
This language formed part of count 2, threats to Tara Elonis, and was the basis for Count 3, threats to local law enforcement.
The next day Elonis published seemingly unrelated comments which became the basis for count 4:
That’s it, I’ve had about enough I’m checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a kindergarten class
The only question is … which one?
By this time the FBI was surreptitiously monitoring Elonis’s Facebook page, and two FBI agents went to his home to speak to him. After the agents said he did not have to talk to them Elonis told them to leave and then posted a comment in which, reflecting on the encounter, Elonis said that he had been tempted to slit the female’s agent’s throat, claimed to have had a bomb strapped to his person which would have exploded had he been patted down, and implied that if the agent returned he was prepared to detonate a bomb. This post, more than any other, has the flavor of gangster rap, and in a second verse the language clearly indicates that the post is not serious (“I’m just an aspiring rapper who likes attention” “…if you really believe this shit, I’ll have some bridge rubble to sell you tomorrow.”) This post led the FBI to refer Elonis to the U.S. Attorney for prosecution and without the second verse, became the basis for Count 5 of the indictment.
Elonis v. United States: What It Means for the First Amendment
It is undisputed that that although the First Amendment protects freedom of speech, its protections do not extend to “true threats.” The issue in this case is whether Elonis’s postings constituted true threats and, in particular, the standard by which this is to be determined. The trial court had instructed the jury that it was enough that the defendant intentionally made the statement in circumstances where, “a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” Elonis argued that it was not enough that a reasonable person would have foreseen his words would be taken as a threat (an objective standard, much like the foreseeability standard in negligence law) but it also must be shown that the speaker in fact intended his words as a threat. (a subjective standard.)
Although Elonis would not necessarily have prevailed had a subjective standard been used, there were substantial arguments he could have used in his defense. He had, before making his first post-PFA entry, changed his Facebook name, and he had not tagged his wife with his messages. This meant that his wife, who was not a Facebook friend, could not find his rants by searching on his name, and unless a Facebook friend shared his posts with his wife, she would not know what he had written. Moreover, the posts that formed the basis of the indictment followed earlier seemingly angry posts which Elonis had characterized as rap lyrics using “crude, spontaneous and emotional language expressing frustration.” Explaining himself to another Facebook user, he wrote that his postings were “for me. My writing is therapeutic.” This was consistent with his having said that the writings, ”help[ed] me deal with the pain”. He had also said in earlier posts, “I ain’t a legitimate threat,” and described himself as “an aspiring rapper.”
A number of his postings also referred directly or indirectly to the First Amendment and to his desire to assert First Amendment rights, suggesting perhaps that they were not quite what they seemed. The post that was at the heart of Count 2 of the indictment was an almost word for word copy of a comedy sketch he and his spouse had watched, and presumably laughed at, together, except he substituted the word “wife” for “President.” As originally written the sketch was clearly protected by the First Amendment, as was his source for the alleged threat to shoot up a kindergarten, an Eminem lyric in which the rapper fantasized participating in the Columbine shooting. Not only was this post, which constituted Count 4 of the indictment, made two years before Sandy Hook, but it also was not part of a stream of diatribes against his wife and was surrounded by posts addressing much different subjects, including a clip from a favorite movie and social commentary adapted from a song by a comedian. Thus the claimed link to Eminem’s lyric was at least credible.
Count 5, the alleged threat against the FBI agent, is perhaps the weakest of the charged violations. Elonis did not know the agent was monitoring his Facebook account and would read what he had written. Moreover, the language charged as the alleged threat excluded the concluding portion of what Elonis had written (although the jury no doubt knew and was able to consider it).
The government’s position was that the claims Elonis sought to make regarding his intent could not save him because whether a statement is a true threat turns on whether a person might be expected to respond to apparently threatening words with fear and not on the intent with which allegedly threatening words were uttered. If a reasonable speaker could foresee that his words might be regarded as threatening and someone did regard them in this way, the words were, the government claimed, unprotected by the First Amendment.The rationale for this objective standard, which is the law in most Federal Circuits, is that fear itself is harmful. Thus society has an interest in protecting people from fear, and in discouraging conduct that might reasonably be expected to trigger it. Not only may a person be made fearful by intended threats which a speaker has no plans to carry out, but fear may be also triggered by frightening language, even if the language was not uttered with intent to frighten.
The government’s position is reasonable as far as it goes, but it does not go far enough. In most cases we punish through the penal law not just to prevent bad consequences, but also because those we seek to punish are in some measure bad people. Usually, although not always, if unintended harms are a reasonably foreseeable consequence of an actor’s behavior, rectification of the harm and the discouragement of similar harms are tasks left to the civil rather than the criminal justice system. In a society where First Amendment freedoms have, for good reason, an almost sacred status, the importation of a civil justice standard into the criminal justice process is particularly problematic.
Few might be distressed by knowing that Elonis was imprisoned, but there are reasons why we should all care how his appeal is decided. One is that the charge given the Elonis jury allows for the punishment of words regardless of the likelihood that they portend harm. I do not mean by this that threats should not be punished unless there is reason to believe they will be carried out, for a speaker’s hidden intent to do no more than threaten neither mitigates the harm caused by the fear induced nor suggests a benign motivation for seemingly threatening words. But if a speaker did not intend to threaten another, the situation changes. Then regardless of how others respond to statements, we cannot say the speaker intended to do harm. The law given the Elonis jury did, not make this distinction. Consistent with the judge’s charge, the government told the jury in closing that it didn’t matter if Elonis’s postings were “therapeutic to [him]” and helped him overcome the trauma of losing his wife, children, and job, since “it doesn’t matter what he thinks.” “We don’t,” the prosecutor told the jury, “have to prove he intended the [posts] to be threatening.”
An implication of the objective standard which the government espouses is that a violation can occur even if no one whom a statement might frighten sees it. So long as a statement is transmitted in interstate commerce, the statute requires only that “the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” Since any Facebook friend, without feeling personally threatened, might nonetheless interpret Elonis’s writings as threats, then, if the objective standard applies, the statute, strictly speaking, has been violated even though no one reading the statement is frightened by it. Moreover, statements on the web may be read by, and hence communicated to, people the speaker does not know to be present. Recipients of the communications may be, and have been, law enforcement personnel surreptitiously monitoring on-line postings. Thus on-line postings might trigger a prosecution whenever a poster’s message might reasonably be interpreted as a threat, even if the target of the threat is unaware the message exists or only later learns of it from law enforcement.
Count 5 of the indictment, in which Elonis writes (raps) about an FBI agent who came to question him illustrates how far liability can extend. The agent was not a Facebook friend permitted to read his posts, nor had Elonis tagged her as a message recipient. Moreover, the post that constitutes the fifth count is most like rap; its claim that he was wearing a bomb when the agent visited is transparent fiction, and the post mainly describes a past event, although the Third Circuit Court treated the suggestion that if the agent returned she should bring a SWAT team as sufficiently forward looking to constitute a true threat. Moreover, the FBI agent’s testimony that the post made her fearful is hardly credible. Despite her knowledge of Elonis’s prior “threats,” the agent had no qualms about going to his home, knocking on his door and asking to speak with him, and even if it were reasonable to take the Elonis’s post-visit commentary seriously, the agent could easily take steps to ensure against violence on a subsequent visit. FBI agents should be made of sterner stuff.
The ease of convicting speakers on such flimsy grounds has led many groups to see the Third Circuit’s application of the objective standard as a threat to free speech. Among those submitting amicus briefs in support of Elonis are the ACLU, the Reporters Committee for Freedom of the Press, People for the Ethical Treatment of Animals, Rap Music Scholars, an anti-nuclear activist, and Operation Rescue and other anti-abortion groups. These amici believe that much can turn on the objective/subjective distinction. Consider one concern reporters have. Taking the statutory language literally and denying the relevance of a speaker’s intent, would in theory mean that a journalist might be sent to prison for accurately reporting a threat a person has made. It is not enough to say that this won’t happen. Suppose it is a radical underground newspaper that reports the threat, or suppose the authorities ask a mainstream newspaper to refrain from reporting a threat, but the paper decides that the news is too important to keep from the public. Is it obvious that the government would not proceed to prosecute if placing a reasonable person in fear were enough to constitute a violation, or that a paper might be threatened with prosecution in an effort to keep it from reporting a threat?
It is almost a canon of First Amendment constitutional law that it is only by protecting unpopular speech of little obvious value that we can we guard against the possibility of punishing the mere expression of ideas or chilling the expression of speech that the government has no business barring. Reversing Elonis’s conviction may be part of the price of freedom.
Elonis v. United States: A Hearing at the Supreme Court
At oral argument the Supreme Court was troubled by the notion that Eminem could, as he has done, fantasize in a rap song about killing his ex-wife without fear of prosecution, while Elonis, if he had done nothing more than republish Eminem’s lyrics, might be punished for it. But the Court seemed more worried about the possibility that opting for a subjective standard would free speakers to threaten others with impunity.The Justices were concerned that requiring subjective intent might mean that a man could, for example, send his estranged wife a detailed description of how he would kill her, but protect himself from punishment by concluding a gruesome description with words like “just kidding.” There is, however, little to fear in this regard. Intent is a subjective state, to be sure, but it need not be expressed to be inferred, and it can be inferred despite overt denials. Just as a person might reasonably fear violence from an apparent threat that ends “just kidding,” so can a person intend a threat despite a seeming retraction. If posted words are likely to make a reader fearful, and if circumstances make it reasonable to conclude that the poster wanted to scare the reader, a writer’s description of his post as therapeutic, harmless rap or only a joke need not provide a safe harbor. The subjective standard guarantees only that a jury can consider the writer’s assertion of a benign motive. It does not guarantee an acquittal.
An apparent threat ending “just kidding” sent to the man’s estranged wife could be sufficient for a guilty verdict even using the subjective standard, for why would the man have sent his wife the message if he did not intend to scare her? Similarly, depending on the circumstances, the subjective standard would not preclude convicting a person who sent another a link to a threatening rap song with the message, “I thought you might enjoy this.” The crime here is not carrying out or intending to carry out threatened violence; it is intending a threat in the first instance. By the same token, if the subjective standard prevailed, preparing and posting a detailed, realistic and feasible plan to kill an estranged spouse would not open the writer to punishment under the statute at issue in Elonis (although it might under some other law) if the sender in good faith believed his spouse would never see it.
The compatibility of the subjective standard with criminal justice goals is perhaps best illustrated by the facts of Elonis. Even if the subjective standard prevailed, it seems unlikely that Elonis would have escaped punishment on all counts. Once Tara Elonis served her husband with a protective order, he knew that she was frightened by his Facebook postings. He also very likely anticipated that some of his Facebook friends knew his wife and would report threatening postings to her. Regardless of how he explained his postings, a jury could have found beyond a reasonable doubt that his communications were intended threats. Indeed, his several claims to be exercising his First Amendment rights would have cut against his defense. They suggest that he wanted to come as closed to threatening his wife as he could without suffering legal consequences, but this very desire tends to show that he wanted to threaten. The subjective standard would, however, have most likely prevented Elonis’s conviction for threatening the FBI agent, and probably would have dissuaded the government from indicting for the post-visit rap in the first instance. This is as it should be.
Although it is hard to have sympathy for Elonis – I certainly don’t – he has a strong claim to be added to the list of scoundrels and miscreants to whom we owe the breadth of the First Amendment’s protection. But even if Elonis prevails, First Amendment jurisprudence may not be definitively altered. In granting certiorari, the Court asked the parties to address an issue they had not sought to have reviewed: whether the statute used to convict Elonis meant to define “threats” by an objective standard. When a statute may be interpreted in two ways, one of which is arguably unconstitutional, absent clear legislative intent, courts will ordinarily read the statute so as to avoid the constitutional problem. This may well be the outcome here. If so, it will be reasonable to conclude that defining threats objectively most likely violates the First Amendment, but the case will not quite hold this. Nevertheless rap musicians, anti-abortion activists, journalists who pass on threats and activists who think wearing furs is a sin will all feel a little safer when writing their most edgy posts.