The criminality of creating violent threats on Facebook remains an open question, despite the decision today by the U.S. Supreme Court to overturn the conviction of a man who posted violent messages online.
Elonis v. United States has been widely considered as a landmark case for how courts will treat online communications, and especially online threats via social media. The Supreme Court heard the case in December of 2014; today it threw out a conviction, which previously sentenced Elonis to more than three years in prison, in a 7-2 ruling. According to Chief Justice John G. Roberts Jr., "Elonis' conviction cannot stand."
"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," he said. "Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state."
In 2010, Anthony Elonis posted violent messages under a pseudonym on Facebook about his estranged wife, state and federal law enforcement, co-workers and a kindergarten class. "If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder," Elonis wrote in one such example. " ...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."
"The Court declines to say. Attorneys and judges are left to guess."
Much of the Elonis case focused on whether the posts could be considered a "true threat" vs. "protected speech" under the First Amendment. Elonis, who claimed the postings were nothing more than rap lyrics, said the writing was intended to be "therapeutic."
Justice Samuel Alito both concurred in part and dissented in part on the decision.
"The Court's disposition of this case is certain to cause confusion and serious problems," Alito said. "Attorneys and judges need to know which mental state is required for conviction ... This case squarely presents that issue, but the Court provides only a partial answer. 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. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess."
Justice Clarence Thomas offered a dissenting word on the case, arguing that the Supreme Court's job is to "decide questions, not create them."
"This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty," Thomas said. "This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent. Although I am sympathetic to my colleagues' policy concerns about the risks associated with threat prosecutions, the answer to such fears is not to discard our traditional approach to state-of-mind requirements in criminal law ... "
"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."