Posted on 2 Jun 2015
On June 1, 2015, the US Supreme Court overturned the conviction of Anthony Elonis in Elonis v. United States, a case about a man who used the social media website Facebook to post several messages about his estranged wife and others.
Elonis was indicted for violations of 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." Among the postings that resulted in Elonis' indictment and conviction were:
Did you know that it's illegal for me to say I want to kill my wife? . . . It's one of the only sentences that I'm not allowed to say. . . . Now it was okay for me to say I want 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. . . . Um, but what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife. . . . 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. . . . Yet even more illegal to show an illustrated diagram.
After reviewing the message above, Elonis' wife obtained a restraining order, and he later posted:
Fold up your [restraining order] 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'll add zeros to my settlement . . . And if worse comes to worse I've got enough explosves to take care of the State Police and the Sheriff's Department.
In defense of these (and other) postings, Elonis filed a motion to dismiss the indictment for failing to allege that he intended to threaten anyone. The trial court denied the motion, and the case proceeded to trial. At trial, the government's witnesses, including Elonis' wife, testified that they were afraid and viewed Elonis's posts as serious threats. Elonis testified that his posts were inspired by the well known rapper Eminem, who fantasized in rap lyrics about killing his wife, and that he had posted "nothing . . . that hasn't been said already." After presentation of the evidence, he requested a jury instruction that the government must prove that he intended to communicate a true threat, and the District Court denied that request. Instead, the instructions informed the jury that:
A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein 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.
The government, in its closing argument, emphasized that whether Elonis intended his postings to be threatening was irrelevant. The jury convicted him on four out of five counts alleged in the indictment. He was sentenced to three years, eight months' impisonment (in addition to three years of supervised release). The Court of Appeals for the Third Circuit affirmed the conviction.
The Supreme Court overturned the conviction. It explained that although §875(c) does not specifiy any required mental state, that "does not mean that none exists." In so doing, the Court reiterated the basic principle that "wrongdoing must be conscious to be criminal." As such courts must generally "interpret criminal statutes to include broadly applicable scienter requirements, even when the statute by its terms does not contain them." In other words, "a guilty mind is a necessary element in the indictment and proof of every crime."
The Court was very careful in Elonis to point out that its standard does not require a jury to find that a defendant must know his conduct to be illegal ("ignorance of the law is no excuse"). Rather, to be found guilty, the accused must only know the facts that make his conduct fit the definition of the offense, "even if he does not know that those facts give rise to a crime."
The practical implications of Elonis are significant. The case underscores the proposition that negligence is not synonomous with criminality. In other words, in the context of communicating threats, the government must allege and prove more than the act of negligently making threatening statements. For the act to be criminal, the accused must intend for the communication to be threatening.