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.