“Given our disposition, it is not necessary to consider any First Amendment issues.”
Not since “For God, for country, and for Yale!” have so few words conveyed so bitter an anticlimax. They were written for the United States Supreme Court by Chief Justice John G. Roberts. He was writing for seven justices in Elonis v. United States, the “Facebook threats” case.
Not so much. In fact, the case discusses only the basic issue of “mental state”—the staple of first-year criminal-law classes. Every One L knows that crime requires a “guilty mind.” In our system, we don’t convict people who don’t know what they’re doing. They don’t have to know it’s against the law; but most criminal statutes specify some mental state that must be proved. Does the defendant only have to know what actions he or she is committing (general intent)? Must the defendant be reckless—that is, know that there’s a substantial risk that actions will do harm, and disregard it? Or does the crime require specific intent—that the jury must find beyond a reasonable doubt that this defendant wanted and understood that the that the actions would cause harm?
Elonis required the Court to decide what sort of “guilty mind” is necessary to violate a federal criminal statute, 18 U.S.C. Section 875(c). The law forbids using “interstate communications” to transmit a “threat to injure the person of another.” It doesn’t specify any “mental state” at all. Courts have wrestled with its language for years.
The lower court held that Elonis himself only needed to know the meaning of the words he wrote; if “a reasonable person” would “foresee” that the words would be read as a threat, he could be convicted. As the prosecutor told the jury, “it doesn’t matter what he thinks.”
In Monday’s decision, seven justices firmly said that “general intent” is not enough. Okay, then, is the answer recklessness or intent?
Yes, Roberts wrote.
Well, which? The chief justice wasn’t saying.
Anthony Elonis was a theme-park worker in Pennsylvania. In 2010, his wife left him, taking their two children. Soon after, he was fired from his job. He began posting on Facebook that he was thinking of killing his wife. Here’s a sample:
There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave.
His wife, terrified, got a restraining order—in response to which he posted, “fold up your [order] and put it in your pocket./Is it thick enough to stop a bullet?” Meanwhile he posted similar words (and some pictures) about his former co-workers, children at nearby elementary schools, and a federal agent.
Elonis was posting under the “rap” name “Tone Dougie,” and claimed that his words were just artistic expression and emotional therapy. He argued that the First Amendment required proof of a “subjective intention” to convey a threat. The trial court and the Third Circuit Court of Appeals rejected that: General intent was enough. The Supreme Court Monday simply reversed the court of appeals. You guys figure out the right “mental state,” it said, and we will let you know later if you got it right.
The Court has repeatedly said that the First Amendment does not protect “true threats.” That phrase does not mean that the defendant can and will do what he threatens to do; it simply means that the words really mean what they say—“I intend to hurt you.” Two kids phoning in a bomb threat are making a “true threat”; a Vietnam-era anti-draft speaker warning that “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” was not.
So—was “Tone Dougie’s” page a “true threat”? Elonis could be, and almost certainly should be, convicted under any standard. He knew he was terrifying his wife—a court had told him so and ordered him to stop. He posted that he intended to carry out “the most heinous school shooting ever imagined”; when two federal agents visited him after the school threat, Tone Dougie warned them that if they came again he would blow them up with a suicide vest.
To prove that Elonis had a “guilty mind,” the prosecution—even under the demanding intent standard—would not have to x-ray his skull, or find words saying, “I intend to cause fear.” As in any other criminal case, they’d only have to show that what he said, what he did, and the circumstances make it almost impossible to deny that he must have intended to scare somebody. That’s how the criminal law reads the mind of man, and Elonis’s doesn’t seem terribly opaque.
When he was confirmed as chief justice, Roberts told the Senate Judiciary Committee that he aimed at a Court that was less divided and more modest. Fewer dissents, more unanimous decisions. He is proving—in some areas at least—true to his words. It may be that Monday’s decision attracted seven votes precisely because it decided so little.
There was one additional vote to reverse—Justice Samuel Alito, who wrote that “[t]he Court’s disposition of this case is certain to cause confusion and serious problems.” Most of Alito’s opinion is a careful roadmap for the Third Circuit, explaining that it should decide that recklessness is the correct standard. Justice Clarence Thomas dissented—not because he thought Elonis’s speech was protected, but because he believed that a “general intent” standard was good enough. Quoting a 2000 case, he said, the proper standard was that “‘the defendant [must] know the facts that make his conduct illegal’—but he need not know that those facts make his conduct illegal.”
Elonis is, then, a disappointment, declining to reveal what the Court really thinks. Half a millennium ago, Chief Justice Thomas Bryan of Britain’s Court of Common Pleas, in exasperation, wrote that “[t]he thought of man is not triable, for the devil himself knoweth the mind of man.” If we could summon him from that grim shade into which pass heroes of the common law, I suspect that he would confess that in this particular case, neither he nor the devil could know the mind of Chief Justice John G. Roberts.