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In Elonis v. United States (2015), the U.S. Supreme Court ruled that Anthony Douglas Elonis had been improperly convicted of transmitting threats through postings on Facebook. The First Amendment does not protect true threats, but the jury was instructed that they only had to find that a "reasonable person" would regard Elonis' words as a threat. In this photo, John P. Elwood, Elonis' attorney, speaks to reporters outside the Supreme Court in 2014.  (AP Photo/Susan Walsh)

In Elonis v. United States 575 US __ (2015), the U.S. Supreme Court in an 8-1 opinion reversed a trial court conviction of a man found guilty under a federal stalking statute on the grounds that the man was convicted under instructions that required only that the jury find that he communicated what a reasonable person would regard as a threat.

Anthony Douglas Elonis was prosected after he had posted on Facebook rap lyrics under the name of “Tone Dougie” that appeared to threaten his ex-wife, an FBI agent and a kindergarten class.  He had included disclaimers indicating that his lyrics were “fictitious,” that they were “therapeutic,” that they emulated the lyrics of rap star Eminem, and that they were a proper exercise of Elonis’ First Amendment rights.

Trial court used ‘reasonable person’ standard to convict Elonis

At trial, Elonis requested the judge to instruct the jury that to convict him, the government must prove that he intended to convey a true threat. Instead, the court instructed jurors that they need only find that “a reasonable person” would interpret the words to constitute such a threat.

The court has long insisted that wrongdoing must be conscious to be criminal. This is because criminal law has always insisted on actual blameworthiness as expressed in such terms as “mens rea, scienter, malice aforethought, guilty knowledge and the like.” A criminal defendant must “know the facts that make his conduct fit the definition of the offense.”

The reasonable person standard reduced the standard for a criminal conviction to that of negligence, which is more consistent with the standard for civil liability. 

“The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error,” Justice Roberts wrote. “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”

Roberts wrote that the mental state requirement of the federal criminal stalking law (18 USC Sec.875(c)) “is 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.” 

Court declines to decide whether a showing of recklessness would be sufficient

Although Elonis asserted that recklessness was not sufficient to show that he had uttered a true threat, neither he nor the government briefed this issue, and there were no conflicting circuit court opinions on the subject that the court might review. The Supreme Court accordingly refused to decide whether a showing of recklessness would be legally sufficient for a criminal conviction involving speech.

In a partial concurrence and a partial dissent, Justice Samuel Alito agreed that the court appropriately sought to show that Elonis had mens rea but thought that an instruction requiring proof of recklessness would be sufficient to show this. Alito stressed that the First Amendment does not protect true threats, which “inflict great harm and have little if any social value.”

Despite Elonis’ reliance on professional performers who used similar lyrics, Alito observed that “’[t]aken in context,’ lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person.” Alito would accordingly remand the case to the court of appeals to decide “whether Elonis’ conviction could be upheld under a recklessness standard” and whether, alternatively, the instructions might be regarded as “harmless error.”

In a dissenting opinion, Justice Clarence Thomas observed that nine of the 11 federal circuit courts that had interpreted the federal stalking statute had found that it required a showing of general intent “which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context.” Thomas further thought that Elonis’ words met the objective standard for a true threat.

Elonis’ own belief about the legal status of his words is immaterial, Thomas said. Thomas denied that a showing of general intent is equivalent to a showing of mere negligence – “there is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat.” 

Both English precedents and early state laws establish that freedom of speech has never included true threats, and “[w]e generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech.”  Thomas cited cases involving “fighting words” and cross burning. Elonis is just as guilty of issuing a true threat, Thomas said, as he would be had he mailed obscene materials to his wife or to the kindergarten class that he threatened.

In 2023, Supreme Court establishes recklessness standard for true threat convictions

In 2023, the Supreme Court ruled in another case, Counterman v. Colorado, which involved a man who used Facebook to send threatening messages to a local female musician over two years. He was convicted of stalking, In Counterman, the high court established the level of mens rea needed to convict someone of a threat, establishing that level at recklessness. Although the court overturned Counterman’s conviction, sending the case back to a lower court for additional proceedings to show his state of mind, it provided a more definitive description: Under a recklessness standard, the state must prove only that the person “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

The high court explained that the recklessness standard does not require a finding that the defendant meant to do harm or that he knew that the recipient of the communication would actually feel threatened.

The recklessness standard only “involves insufficient concern with risk rather than awareness of impending harm,” the ruling said. “(I)t means that a speaker is aware ‘that others could regard his statements as’ threatening violence and ‘delivers them anyway,” the court said, quoting the ruling in Elonis.

This article was last updated in July 2023 by Deborah Fisher, director of the Seigenthaler Chair of Excellence in First Amendment Studies. John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment.

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