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Justices Say Facebook Posts Can’t Be Threats Without Intent

Justices Say Facebook Posts Can’t Be Threats Without Intent

http://www.law360.com/appellate/articles/630067/breaking-justices-say-facebook-posts-can-t-be-threats-without-intent?es_p=529815

By Allison Grande

The U.S. Supreme Court ruled Monday that an online musing cannot be considered threatening if the author claims he didn’t intend for the posting to be perceived that way, striking down the conviction of a man who made violent remarks about his wife, law enforcement officials and others over Facebook.

In a 7-2 decision, the high court reversed the Third Circuit’s September 2013 ruling that held that the test for determining whether a statement can be deemed a true threat hinges on how a reasonable observer would view the message, rather than whether the speaker intended for the posts to be threatening.

“Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law, but is inconsistent with ‘the conventional requirement for criminal conduct — awareness of some wrongdoing,'” Chief Justice John Roberts wrote in the majority decision. “Having liability turn on whether a ‘reasonable person’ regards the communication as a threat — regardless of what the defendant thinks — ‘reduces culpability on the all-important element of the crime to negligence,’ and we ‘have long been reluctant to infer that a negligence standard was intended in criminal statutes.'”

Justices Samuel Alito and Clarence Thomas both attacked the majority’s decision, saying it didn’t go far enough to provide guidance to lower courts on how to assess intent on the part of the speaker.

“The court’s disposition of this case is certain to cause confusion and serious problems,” Justice Alito wrote in an opinion dissenting in part. “The court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat.  But the court refuses to explain what type of intent was necessary.”

Because the majority opinion failed to address questions such as whether it was enough that Elonis knew his words conveyed a perceived threat or whether recklessness was enough to be culpable under the statute, “attorneys and judges are left to guess,” creating “regrettable consequences,” according to Alito.

Thomas in his full dissent also took issue with the majority leaving lower courts to “guess at the appropriate mental state for culpability” and skirting the recklessness question, in addition to its refusal to weigh the question of whether the First Amendment requires a particular mental state for threat prosecutions.

“Our job is to decide questions, not create them,” Justice Thomas wrote. “Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule — any clear rule.  Its failure to do so reveals the fractured foundation upon which today’s deci­sion rests.”

As a result of the majority decision, the justices vacated the conviction of defendant and peitioner Anthony Elonis, who in multiple Facebook posts discussed killing his wife with a mortar launcher and blowing up FBI agents, although they did remand the case to the lower court in order to give prosecutors an opportunity to retry the case based on the intent standard.

Arrested in 2010, Elonis was indicted on five counts of making threatening communications. A jury eventually convicted him on counts involving threats to his wife and threats to an FBI agent, and he was sentenced to 44 months in prison.

In appealing the conviction to the Third Circuit, Elonis contended that, based on the Supreme Court’s 2003 decision in Virginia v. Black, the jury was misled on the true threat standard through instructions that depended on how a reasonable person would see the statement.

According to Elonis, the Black case established the requirement of a subjective intent to threaten, and Elonis asserted that he didn’t mean for his Facebook posts to be threatening.

But the three-judge Third Circuit panel rejected that view of the decision and said a statement falls within the true threat exception to the First Amendment based on what a reasonable speaker would believe, maintaining its finding in the 1991 case of U.S. v. Kosma.

The appellate court’s decision led Elonis to the Supreme Court, which in June agreed to hear the case.

During oral arguments in December, the justices grilled representatives for the government and Elonis over how far prosecutors must go to prove that a violent message posted online falls within the true threat exception to the First Amendment.

While the government pushed for the high court to uphold the standard established by the Third Circuit and the petitioner advocated for a higher bar that would require prosecutors to prove subjective intent on the part of the poster, several justices searched for a compromise that would punish threatening posts without weeding out protected speech, such as legitimate rap lyrics and protest activities.

“We typically say that the First Amendment requires a kind of a buffer zone to ensure that even stuff that is wrongful may be is permitted because we don’t want to chill innocent behavior,” Justice Elena Kagan said. “So I guess the question is: Shouldn’t we allow some kind of buffer zone here past the sort of reasonable-man negligence standard that you are proposing?”

Deputy Solicitor General Michael R. Dreeben responded that moving away from the reasonable observer standard set by the Third Circuit would be dangerous because it would allow people who are consciously aware of the impact of their statement to hide behind an alleged lack of intent to cause that reaction.

John P. Elwood of Vinson & Elkins LLP, who argued the case on behalf of Elonis, countered that eliminating the poster’s intent from the equation completely would wrongly sweep up teenagers “who are essentially shooting off their mouth” and create a “five-year felony liability” any time there is a disagreement between the understanding of the speaker and the understanding of the listener.

Chief Justice John Roberts delivered the opinion of the court, in which Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined. Justice Samuel Alito filed an opinion concurring in part and dissenting in part. Justice Clarence Thomas filed a dissenting opinion.

Elonis is represented by John P. Elwood of Vinson & Elkins LLP and Ron Levine and Abe Rein of Post & Schell PC.

The government is represented by Deputy Solicitor General Michael R. Dreeben.

The case is U.S. v. Elonis, case number 13-983, in the Supreme Court of the United States.

–Additional reporting by Martin Bricketto. Editing by Philip Shea and Rebecca Flanagan.

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