In a narrow free-speech ruling fit for the Facebook era, the Supreme Court made it a little harder Monday to prosecute people for making threatening statements.
While steering clear of the First Amendment, the court in a 7-2 decision reversed the conviction of a Pennsylvania man whose Facebook postings seemed threatening to his estranged wife. The court said prosecutors needed to prove that the speaker had some awareness that he was doing something wrong.
“Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state,” Chief Justice John Roberts Jr. wrote. “Wrongdoing must be conscious to be criminal.”
The court’s ruling is a victory for Anthony Douglas Elonis, whose conviction on four counts of communicating threats was overturned. The reasoning in Roberts’ majority opinion might also help others in similar circumstances.
Premium content for only $0.99
For the most comprehensive local coverage, subscribe today.
The decision, though, leaves a First Amendment question unanswered, about precisely what state-of-mind test must be applied in judging someone accused of making threats.
One potential test is whether a reasonable speaker would foresee that the statement would be interpreted as a threat. Another would require proving a subjective intent to threaten. The ruling Monday leaves that choice for another day.
“This will have regrettable consequences,” Justice Samuel Alito wrote in a partial dissent, adding that “attorneys and judges are left to guess” what standard to apply.
Steven R. Shapiro, national legal director of the American Civil Liberties Union, praised the decision as one that “properly recognizes that the law has for centuries required the government to prove criminal intent before putting someone in jail.”
“That principle is especially important when a prosecution is based on a defendant’s words,” Shapiro said in a statement. “The Internet does not change this long-standing rule.”
The case, Elonis v. United States, dates to a May 2010 domestic dispute, when Elonis’ wife of nearly seven years moved out of their home with their two young children. Elonis subsequently began experiencing trouble at his job at the Dorney Park & Wildwater Kingdom amusement park in Allentown, Pa.
After Elonis was fired, his aggressive Facebook postings accelerated under the name “Tone Dougie,” which Roberts characterized as a “rap-style nom de plume.”
“There’s one way to love you but a thousand ways to kill you,” Elonis posted at one point.
Elonis characterized his postings as “fictitious lyrics” and likened himself to Eminem and other rappers for whom “art is about pushing limits.” Elonis argued that the jury should have been required to find that he intended his posts to be threats.
The trial judge disagreed, and Elonis was convicted on four counts of making threatening communications and sentenced to 44 months in prison. He was freed last year.