Supreme Court Completely Punts On First Amendment Question About ‘Threatening’ Song Lyrics On Facebook

Last year, we wrote about a potentially important First Amendment case involving Anthony Elonis, who posted some fairly nasty things online, including some about his ex-wife that some certainly read to be threatening. Elonis insisted that it was just a persona, and what he posted online were merely rap lyrics with no actual threat behind them — but he still ended up in jail for a few years because of it. And, thus, the Supreme Court heard a case that was supposed to be about the First Amendment and whether threats need to be “true threats” to lead to charges, and what exactly “true threats” mean, and through whose eyes should the statements be seen. But, as has happened all too often with this Supreme Court, it punted on the key issue and chose not to discuss the First Amendment issues at all after realizing it could overturn the case on other grounds.

The Supreme Court thinks it’s doing a good thing when it fails to actually address the big question, saying that it’s waiting for an appropriate time to do so, but all it really does is keep a bunch of legal uncertainties going, allowing lawyers to rack up huge amounts of billable hours, on questions that the Court could have just settled the first time around. It’s no different in this case. Here, the court basically rejects the use of the “reasonable person” test that was used in the original jury instructions (i.e., would a “reasonable person” find Elonis’s statements to be “true threats,” rather than whether Elonis himself intended them as such). But, the Court notes, that’s setting up a negligence standard that is rarely found in criminal law, and certainly not in the relevant statute for this case:

Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct— awareness of some wrongdoing.”… Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks—“reduces culpability on the all-important element of the crime to negligence,” … and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes,” … Under these principles, “what [Elonis] thinks” does matter.

And thus, the Supremes overturn the appeals court’s ruling. It also notes that all the tap dancing the DOJ did in trying to insist that this is not a negligence standard fails:

The Government is at pains to characterize its position as something other than a negligence standard, emphasizing that its approach would require proof that a defendant“comprehended [the] contents and context” of the communication…. The Government gives two examples of individuals who, in its view, would lack this necessary mental state—a “foreigner, ignorant of the English language,” who would not know the meaning of the words at issue, or an individual mailing a sealed envelope without knowing its contents…. But the fact that the Government would require a defendant to actually know the words of and circumstances surrounding a communication does not amount to a rejection of negligence. Criminal negligence standards often incorporate “the circumstances known” to a defendant…. Courts then ask, however, whether a reasonable person equipped with that knowledge, not the actual defendant, would have recognized the harmfulness of his conduct.That is precisely the Government’s position here: Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a reasonable person would have recognized that the posts would be read as genuine threats. That is a negligence standard.

Okay. Fair enough. With that, the Court sides with Elonis:

In light of the foregoing, Elonis’s 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. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”

But then the Court fails to take the next necessary step in handling what standard is appropriate.

There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat…. In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient…. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it… (this Court is “poorly situated” to address an argument the Court of Appeals did not consider, the parties did not brief, and counsel addressed in “only the most cursory fashion at oral argument”). Given our disposition, it is not necessary to consider any First Amendment issues.

And then the decision takes an additional page sanctimoniously explaining why it’s not necessary to answer this question, even though it’s likely to come up again. We’ve seen this argument before (including in some of the links above). This court hates to go out and actually address such questions, all too frequently saying simply “this rule is the wrong rule” and leaving a massive hurricane mess behind as everyone tries to guess at what the right rule might be. I’m sure, in some sort of “Supreme Court Justice On High” logic this makes sense, but it leads to a dangerous world of uncertainty that seems to only be helpful for the lawyers. Justice Alito made this point in his own addition to the ruling (partial concurrence/partial dissent):

Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.

The Court’s disposition of this case is certain to cause confusion and serious problems. 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.

This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.

So, stay tuned, as we’ll likely be back with the Supreme Court having to review this very issue once again within the next few years. And, in the meantime, there will be a huge mess in a variety of courts because no one knows what the proper rules are.

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