Today the United States Supreme Court released its highly-anticipated decision in Elonis v. United States. Many commentators hoped that Elonis would help clarify the line between protected speech and "true threats." They were left disappointed and in some cases confused.
Wait. What's a true threat?
You again.
Just answer the question, lawboy.
Okay. Not every threat is illegal; some threats are protected by the First Amendment. Threats that everybody understands to be a joke, or rhetoric, are protected. So if I say "I'm going to explain the tax code to you until you bleed out the ears," that's protected. But "true threats" are not protected. "True threats" are a class of threats that reasonable people will take as a serious expression of intent to do harm.
Unfortunately, the line between protected rhetoric and true threats is not always clear.
Seems pretty basic. Hasn't the Supreme Court explained this before?
Sort of. In 1969 the Supreme Court decided Watts v. United States, which involved a kid facing being drafted to Vietnam. He said this to a group of people:
"They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J."
He was prosecuted for threatening the President. But the Supreme Court reversed his conviction, saying that nobody would take his statement as anything but political hyperbole:
We agree with petitioner that his only offense here was "a kind of very crude offensive method of stating a political opposition to the President." Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
So didn't that resolve the issue of what true threats are?
No, not entirely. It left open what the government has to prove about the defendant's mental state to convict them of making a threat under various threat statutes.
It's clear that the government has to prove that a threat is objectively "true." That is, the government has to prove that a reasonable person would interpret the threat, in the context in which it was uttered, as an actual expression of intent to do harm.
What's less clear is what subjective intent is required on the part of the threatener. Must a defendant subjectively intend that his or her audience take the threat seriously? Or must the defendant only intend the act — that is, intend to utter the words which reasonable people will interpret as a threat? Or is it something in between?
How does Elonis come into this?
Anthony Douglas Elonis said some seriously scary things about his ex-wife, his employers, school shootings, and law enforcement on Facebook. The feds prosecuted him under Title 18, United States Code, Section 875(c), which makes it a federal crime to transmit a threat in interstate commerce. For these purposes, transmitting in interstate commerce includes putting it on the internet.
Elonis' defense was that he was a rapper, a word-artist, a bloviator, not a threatener. He asked the trial judge to tell the jury that they had to find that he had intent to threaten. The trial judge refused, and instead instructed the jury on the prevailing standard:
“A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.”
Elonis was convicted, and appealed, claiming that both Section 875(c) and the First Amendment require that the government prove that he intended to threaten, or at least was reckless about whether his words would be taken as threats. The Court of Appeals rejected his arguments, but the Supreme Court took the case.
So what did the Supreme Court do?
Screw everything up.
Wut
The Supreme Court could have ruled on just Section 875(c) — it could have just said "this statute requires proof of subjective intent." It could have gone further and ruled on the First Amendment, saying "the First Amendment requires subjective intent to prove a true threat" or that the First Amendment doesn't require that.
Instead, seven justices ruled that Section 875(c) requires the government to prove something more than what it did, but not exactly what.
That does not sound particularly helpful.
It's not. Most federal circuits had interpreted Section 875(c) to require only an objective showing — that a reasonable perrson would take the statement as a threat. Two circuits had required a subjective standard. That was the split in authority facing the Court, ripe to be resolved.
The Court noted that Section 875(c) doesn't have a plain intent requirement in its text, and so turned to a thicket of rules and precedents about how federal courts treat criminal statutes that don't have explicit intent requirements. In order to separate innocent conduct from bad behavior, federal courts prefer to read a criminal statute to require scienter — that is, some level of wrongful intent. "Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state," the opinion says.
So, the objective test — which merely requires that a threatener intentionally make a statement which a reasonable person would take as a threat — isn't enough. So must a threatener intend that the statement be taken as a threat, or know that it will be? Or is it enough that the threatener is reckless — that the threatener consciously disregards the risk that the threat will be taken literally?
The Court refused to say, in part because the parties didn't brief the issue. Therefore, we don't know.
So now a crucial element of Section 875(c), the federal threats statute, is an open question?
Yes. Litigants everywhere will start arguing over it. Unless and until the Court clarifies that recklessness is enough, cautious prosecutors will probably seek to prove intent to threaten, so convictions won't be vulnerable.
Did the Court base this ruling on the First Amendment?
No, with a but.
The Court said that it wasn't reaching the First Amendment question — that it was only deciding as a matter of federal statutory interpretation.
But you can expect that the Court's discussion of the intent requirement will be cited in First Amendment arguments. If it's important to separate innocent intent from bad intent, defendants will argue, then it's especially important when free speech is at stake.
So what impact will Elonis have?
First, it will raise the prosecution's burden in pending and future Section 875(c) prosecutions.
Second, people previously convicted under Section 875(c) will challenge their convictions. Whether a defendant can retroactively challenge a past conviction based on a new statutory interpretation is determined by [several thousand very boring words omitted.]
Third, the government and Section 875(c) defendants will vigorously litigate whether the government need only prove recklessness (that is, conscious disregard of the risk that people will interpret the threat as sincere) or most prove intent that the threat will be taken seriously or knowledge that it will be.
Fourth, people charged under state threat statutes — and other federal statutes — will start to argue that the government must prove subjective intent in those cases as well. Some statutes already require that; some don't. This will throw true threats law into flux.
Is that a strong argument?
Meh. I could argue it both ways. On the one hand the Supreme Court pointedly avoided talking about free speech or the First Amendment in its interpretation of Section 875(c). On the other hand, in analyzing the statute, the court said that the defendant's intent or knowledge in uttering the words is “the crucial element separating legal innocence from wrongful conduct." Because courts are already very concerned with laws clearly stating what speech is prohibited and what is allowed, that may be wrapped into a First Amendment argument. Notably, the dissents suggest that the distinction has First Amendment significance.
What did the dissenters say?
Justice Alito thinks that the Court should have ruled on whether recklessness is enough, and says that the Court just confused everyone by not addressing that point. Justice Alito also thinks that the First Amendment would permit a recklessness standard.
Justice Thomas also complains that the Court has thrown out the majority rule and left nothing in its place. He thinks that the First Amendment and Section 875(c) require only the objective test.
What to the commentators think?
Orin Kerr has a characteristically thoughtful post arguing that the Court made the right call in not deciding more than it absolutely had to.
Do you think that the subjective test makes it too difficult to prosecute threateners?
Not in general, no.
The higher intent requirement is probably most significant for the non-neurotypical — for people without a grasp of how their words are interpreted. But in general, jurors tend to believe that people intend the natural consequences of their actions. There's even an instruction courts sometimes give telling jurors that they may, if they want, presume that a defendant intends the natural and probable consequences of their actions. Moreover, jurors have an easier time empathizing with people who make a threat than with people who are engaging in some sort of performance art.
So, what's the bottom line?
To convict someone of interstate threats under Section 875(c), the feds must now prove up the defendant's subjective intent, not just how the audience will subjectively interpret the threats. It remains unclear whether the First Amendment requires proof of subjective intent, but the opinion will encourage further litigation on that question.
Last 5 posts by Ken White
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Mandatory Elonis Morissette joke: https://twitter.com/dcbyron/status/605423125577072640
But wait, I'm confused. If the new standard is "the threatener is reckless — that the threatener consciously disregards the risk that the threat will be taken literally?" – Shouldn't Elonis still be found guilty? I mean, his facebook post included the statement "Art is about pushing limits. I'm willing to go to jail for my constitutional rights. Are you?" Isn't that right there evidence that he was aware of the risk his threat would be taken literally and was disregarding it?
@William:
SCOTUS declined to reach that. The lower court might well do so. It does look like a very strong case for recklessness.
Justice Thomas also complains that the Court has thrown out the majority rule
The what?
how does this ruling that says that there must be an intent to do something wrong square with the oft-stated "ignorance of the law is no defense"
If someone doesn't know that something is illegal, how can they intend to break the law?
@David: you don't have to know that it's illegal and don't have to intend to break the law.
You have to intend (or maybe be reckless about) to make someone think your threat is serious.
@David Lang: There's a difference between "I didn't know that pulling this lever could kill someone" and "I didn't know murder was illegal".
@Anton Sherwood:
From the dissent:
Basically, 9 of the 11 Circuit Courts who have considered this issue agree with how to handle it. Justice Thomas is complaining that the Supreme Court is throwing out the rule that the majority of Circuit Courts are already using.
never mind, reading the ruling the topic is covered
I'm a little fuzzy as to how the prosecution is supposed to prove an Intent to Threat. While it is certainly comforting to know that they need not prove an Intent to Act on the Threats, I don't get how there is supposed to be evidence on the defendants state of mind.
I think it should be a presumption that if a reasonable person felt threatened, than it is a True Threat, but that the defense is more than welcome to rebut that presumption (like pointing out that the threats rhyme and that the defendant is an amateur rapper.)
As it stands right now, it sounds like "Ha Ha Just Kidding" is a credible defense, which doesn't seem right. This case wasn't just some moron being butt-hurt because somebody said mean things to him on the internet… unless there's some greater context not present in the news articles about the case (which I'll admit is entirely possible), he wrote some fairly scary things.
David,
It's not that he didn't know that making threats is illegal, it's that he didn't know that he was making a threat (or at least it wasn't proven in court)
An analogy can be made for stealing someone's purse: If you know that you're taking someone's purse that's not your own, you can be convicted whether or not you knew it was illegal to do so. But if you don't know that you're taking someone's purse: perhaps they set it down on a cart and you don't see it when you wheel it away, you are not doing something illegal. You have to know that you are carrying out the action for which you are convicted (the exception is strict liability cases, where you don't need to know that you are committing the offense to be held liable. These include things like traffic offenses: you don't need to know that you're speeding to be given a speeding ticket, and statutory rape: even if you sleep with someone who lies and claims they're old enough to consent, you can still get convicted).
But then the question is, how much does he have to know that he's making a threat? Maybe he doesn't intend to make a threat, but he knows that people will construe it as one. Or maybe he doesn't know that, but he's reckless in not seeing that people will take it as a threat. In no case does it matter if he knows that making threats is illegal.
In practice, how does one go about proving subjective intent, in cases where that's the standard? It seems to me like in many/most cases, there would be no real evidence one way or the other as to what the speaker's subjective intent was. I mean, I can see cases where the speaker explicitly stated what their subjective intent was (i.e. describing what they do as "performance art"), or when, as you suggest, a non-neurotypical person says something without considering how it will be interpreted by the normals, they might use their non-neurotypicality as a defense, but those seem like edge cases to me. In the normal case, where there's no evidence like that to point to, how do prosecutors/defense attorneys tend to go about establishing subjective intent/lack thereof?
@Kevin
Think of it this way. I could threaten you, but attach "jk lol" to try to cover myself. Taken in certain contexts and by itself, a reasonable person might be persuaded that "jk lol" means it was not a true threat. On the other hand, if the complainant had other evidence to reveal my state of mind, say private e-mails between us showing a pattern of threatening language or escalating the situation or find that I searched for your address on Bing and looked at the prices of weapons, then that might persuade a reasonable person to believe my "jk lol" was a mere fig leaf.
(IANAL and I could be misunderstanding this or I could understand it as a reasonable person, but not as a legal scholar would.)
JMHO, any standard less than proof of subjective intent of the speaker will inevitably lead to politically correct Humpty Dumpty prosecutions for mere strongly worded but innocuous rhetorical statements:
Compare subjective intent with actual words:
"I'll moider da bum!" or "I'm gonna kill you in the first match!"
PC Humpty-Dumpty Prosecutor says objective intent was threat to murder.
Actual subjective intent: "I'm going to win this game."
"Somebody ought to hang the SOBs that passed this tax!"
PC Humpty-Dumpty Prosecutor says objective intent was solicitation to mass lynching.
Actual subjective intent: "Those legislators are contemptible!"
"Keep that up and I'm gonna kick yer ass outta here."
PC Humpty-Dumpty Prosecutor says objective intent was threat of assault and battery with bodily harm.
Actual subjective intent: "Do that again and I'll tell you to leave."
@SirWired
How hard it is to prove intent will depend somewhat on whether recklessness prevails or whether they have to meet a higher standard. If it is mere recklessness than "ha ha just kidding" would only be a defense in cases where a reasonable observer would actually have interpreted the statements as a joke. As Ken in NH said, adding it immediately may or may not be enough to make it seem a joke depending on the circumstances. Trying to add it substantially later as a defense would likely not change anything.
Where a recklessness (as opposed to purely objective) standard would matter is, as this post said, with the non-neurotypical and with poetry/lyrics/other artistic expression. Certain mental conditions make it hard for the person to understand how others would react. You then have to ask if that non-neurotypical person was at least reckless and if they could have realized the impact of the statement. And when dealing with performance art, the jury may have to decide if they were reckless in assuming they would not be taken literally. Those determinations would have to be made on a more case by case basis by looking at the circumstances, but those are not the stereotypical threat situation.
As for your suggestion about a reasonable person feeling threatened creating a presumption, there are two possibly major issues with it. The first is that you then have to ask whether the accuser was acting as a reasonable person when they felt threatened. In most cases this is likely to devolve back into the question of whether a reasonable person should have felt threatened, only with even more mud-slinging directed at the threatened person's mental state. The other is that burden shifting is touchy with criminal statutes because normally the prosecutor needs to prove every element of the crime. There are some exceptions to this, but those normally involve affirmative defenses such as self-defense. In those cases, the defendant is normally admitting to the elements and then trying to bring up some special circumstance.
@En Passant
While I think you have a valid concern, I suspect you may be taking it too far. Remember that even under an objective standard, the prosecutor had to show that a reasonable person would have felt threatened with bodily harm or death or under all of the circumstances.
Number one and three of your examples could only be taken literally by someone familiar with American English if there were some very unusual circumstances of escalating threats or escalating violence by those parties. Otherwise, any reasonable American would take them as hyperbole. Especially the third one where "kick you out" is an extremely common expression that very rarely involves physical contact.
The second one would be even harder to take as a threat since it says "somebody ought to" rather than "I will." Even if he actually did mean it literally, it would likely be incitement rather than a threat and it would have to be in a very specific context for that (say…a powerful feudal lord saying something about someone ridding him of a meddlesome priest in front of his loyal knights that were skilled at violence).
Thank you, Ken. I thought they'd overturned the conviction on the grounds it didn't meet the unspecified new standard, but looking back I see they overturned it on the grounds that the jury was improperly instructed as to the unspecified new standard. I assume then it counts as a mistrial and the local prosecutor gets to decide whether to keep pursuing it?
Also, your lawsplainer posts are supremely informative and easy to understand. Thank you for doing these!
@En Passant: surely all of your examples would be covered by the existing "reasonable person" standard? That is, no reasonable person would interpret them as a threat, so they're protected regardless of intent.
Timothy A Wiseman June 1, 2015 at 2:47 pm:
Stark, if exaggerated examples make the point clear.
It is not difficult to find nincompoops who appear perfectly normal or "reasonable" in many respects but who are perfectly willing, maybe even motivated for extraneous or political reasons, to testify "I was terrified and feared for my safety when he said that to me."
Note also the barely distinguishable from reality satirical Popehat posting and comments on Leaked Northwestern University Email States Rules For Title IX Investigations. The "objective" standards for sexual harassment (ie: what the recipient of a statement believes the statement meant) have been loosened so much that anything that anybody says to anyone can be "objectively and reasonably" taken as sexual harassment by people who appear to be reasonable in most respects (ie: they wouldn't flap their arms and actually expect to fly).
That's why I think anything less than requiring proof of subjective intent will invite and enable ambitious (in the sense of Shakespeare's Julius Caesar) prosecutors to bring criminal cases stretching the meaning of words to similar extremes.
The idea that people can be charged (and ergo face the crippling costs of the .gov monopoly legal system) for speech of any sort, is grotesque.
A threat to punch a person in the gob – or even a threat to kill them – is not an act; it does not cause harm to person or property (arguably it causes harm to the reputation of the individual making the threat). Persecuting people for making threats is a fucking abomination, and anyone involved in prosecuting individuals for same should die in a fire.
By all means use the existence of a pre-assault threat as evidence of intent: if I'm known to have said "I'ma punch you in the face, you fucknard", and then later, having punched you, I claim that I was attemting to swat a mosquito and my hand slipped… I should have to overcome the presumption that my threat shows intent.
Fucking pre-crime bullshit – from laws against poorly-defined probability tilts (speeding, drink-driving) to 'structuring' law – is precisely the sort of shit that shows that the 'law' is just the collected brain-farts of a bunch of parasitic megalomaniacs.
Punish people who actually do harm: leave everyone else the fuck alone… and if you deviate from that basic principle, expect a noose when the whole fucking thing is set on fire.
@Kratoklastes: the obvious problem with that philosophy is that it would make extortion legal. Besides, the idea that pain is a form of harm but fear isn't is blatantly silly.
Thanks, Richard.
Gee, what a calm, reasonable person. I think I'll listen to him and his clearly reasoned, perfectly-thought out arguments.
After all, there's no way he's an intellectually lazy piece of shit who pays no attention to the consequences of his ideal laws and then proceeds to ITG about it, nope nope nope.
Let's say someone calls you up and says in a raspy voice, "You live at [address]. I am outside with a [weapon]. Do not attempt to live your [domicile] or [death threat]."
What can the person do? Under your proposal, what the threat-issuer has done is not illegal, so the person has to determine whether the threat-issuer is serious or not. If he thinks that there is non-trivial chance that this is real, he's risking his life to go to work, or to buy food.
If the person cannot feed himself (either through earning money to do so, or by physically acquiring the food) because he legitimately fears for his life, how is that not causing harm?
Last para.: "… the feds must now prove up the defendant's subjective intent … [emphasis added]".
Sorry about this, but I don't know the meaning of "prove up" as opposed to a naked "prove." This law dictionary definition doesn't seem relevant to the instant usage.
http://www.merriam-webster.com/dictionary/prove%20up
Steve Brecher, I'm familiar with the phrase in the first definition given by MW. I think Ken has used it somewhat improperly here, as I would write one of the following: they either need to ".prove the defendent's subjective intent…" or they need to "prove up their claims of the the defendent's subjective intent…".
Earle, thank you; but, alas, the Merriam-Webster site requires a credit card to access the definition and I declined to proceed.
Steve, I guess I got lucky as this popped up on Google and I got a free peek. Just get the paywall now.
I'm bothered by the fact that the Court seems to place so much emphasis on intent as a factor in criminal liability when so many criminal offenses don't require intent at all. Manslaughter, for instance, which seems to exist precisely to provide a charge when the prosecution can prove you killed someone but can't prove intent. To me it looks like the Court felt the conviction should have been overturned (which I agree with) but fell into what I consider the trap of believing they could only rule within the bounds of what Elonis raised during appeal. I've always wondered why the Court couldn't simply respond to the appeal with "We agree with the majority of the Circuits on the intent issue, we believe the issue lies with whether the prosecution proved the statements could reasonably have been interpreted as a true threat so you need to brief us on that."? I know judges aren't supposed to rule based on things outside of what the parties have presented during argument, but I don't know of any prohibition on judges telling the parties what areas the judge needs arguments on to come to a good decision.
@Ken:
With a recklessness standard, what about context? That is, if in context it's clear that what I wrote isn't a threat, but I know that John Doe is likely to take what I wrote out of context, would that satisfy the recklessness standard?
@En Passant, @Matthew Cline: surely the objective test is based on whether a *typical* reasonable person would interpret it as a threat, not on whether the *complainant* interpreted it as a threat, no matter how reasonable said complainant might otherwise seem?
In practice, I'd have expected the jury to ask themselves whether *they* would have interpreted it as a threat, hopefully taking the context into account. Not so?
@Harry Johnston:
But would a typical reasonable person try to ascertain the context before evaluating whether or not it was a threat?
Similarly, would the jury members have bothered to get the context before evaluating if it's a threat?
Matthew Cline June 2, 2015 at 10:53 pm:
Exactly.
Hypothetical example: Someone posts "This discussion makes me so angry that I'm going home and killing my wife, children and dog."
Prosecutable under the objective standard that a reasonable person would take it as a threat?
Almost certainly, if the prosecutor isn't required to notice that defendant is unmarried, has no children or dog, and was already at home when he posted it.
Idiots in Congress, there because they're in the right party for their district/state and raised enough money for their election, pass idiotic law, interpreted by idiots in the courts, there because they were in the right party for the President who appointed them and bundled enough campaign money for their party. The last SCOTUS justice I respected as a judge-judge was Warren Burger. If I were ever assigned any of these nine as a trial judge, I would do an SOJ.
@En Passant:
Surely there must be some rule that for a threat to be a true threat, the subject of the threat must actually exist.
… Right?
Your question is somewhat my point. If the specific statute doesn't specify that an actual person be the target of the threat, a defendant might beat the rap, but not the ride.
Would a prosecutor actually check the greater context before filing? Is an actual target (ie: the person against whom the threat was made) necessary under every statute?
California Penal Code Section 422 appears to make an actual target person necessary. It requires both specific intent and an objective test which specifies "that person" who is the target of the threat:
But do all such statutes? I don't know.
But the jury instruction quoted above does not appear to require that an actual person be the target of the threat, only that the defendant's words "be interpreted by those to whom the maker communicates the statement", which could be anybody who reads it:
@En Passant:
But legal precedents that aren't a part of the law/statute would apply. That's what the Supreme Court did here, apply external precedents to the law.
@Matthew Cline:
If the context was potentially relevant, and the defense didn't make sure that the jury was aware of it, the defendant might well have grounds for appeal on the basis of incompetent representation.
@Xtifr:
What I'm trying to ask is: under a recklessness standard, could a prosecutor (successfully) argue that the context doesn't matter (and can't be used as a defense), because the defendant relying on the context was reckless?
I find it interesting that there's a local case that seems pretty related, and she was charged at almost the same time as this case was decided.
http://www.orlandosentinel.com/features/education/os-winter-park-twitter-arrest-anonymous-call-post.html
@Matthew: I don't think that would work, because the putative recklessness standard applies to the subjective "intent" leg, whereas context applies to the objective "reasonable person" leg. The prosecutor has to prove them both separately, if I understand correctly?
That's because you're a seasoned lawyer: The Myth of the Rule of Law (by John Hasnas)
how would a reckless standard work for vets. Since fienstien and dhs have already labeled them as 'dangerous' do vets have to walk on egg shells when they call and rant and rant about injustices even without making explicit threats? Is the 'threat' all ready built into what ever they might grieve and bitch about? Just because it comes from a pist off person? Or does there still have to be a threat? Cuz vets weren't thratening shit and the dhs still calls them a threat. What will the 'reckless' subjective standard really be?
how would a reckless standard work for vets. Since fienstien and dhs have already labeled them as 'dangerous' do vets have to walk on egg shells when they call and rant and rant about injustices even without making explicit threats? Is the 'threat' all ready built into what ever they might grieve and bitch about? Just because it comes from a pist off person? Or does there still have to be a threat? Cuz vets weren't thratening shit and the dhs still calls them a threat. What will the 'reckless' subjective standard really be?
@j: for future reference, that comment would have been a lot clearer if you'd typed out the entire word "veterans", at least the first time.
I was left trying to guess what Feinstein could possibly have against veterinarians. Did they threaten to spay her dog, or what?