Court’s Decision on Online Threats Could Have Done Much More

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The U.S. Supreme Court’s decision Monday in the online threat case Elonis v. United States leaves much to be desired.

The Court reversed the threat convictions of a man, Anthony Elonis, who posted on Facebook derogatory, degrading and disturbing material in 2010 about his estranged wife.  Elonis was convicted of violating a federal law involving threats made across the Internet, and served 44 months in prison.

The Court held that the jury instructions in the initial trial failed to focus on Elonis’ mental state, and required only that Elonis have made a statement in a context that a reasonable person would interpret as threatening.

In his majority opinion, Chief Justice John G. Roberts, Jr. reasoned that this was a mere negligence standard, disrespectful of the cardinal criminal law principle that “wrongdoing must be conscious to be criminal.”

While this is a victory of sorts for defendants facing threat convictions for their speech, the decision failed to address Elonis’ underlying First Amendment arguments.   Roberts simply wrote: “Given our disposition, it is not necessary to consider any First Amendment issues.”

Furthermore, the majority opinion failed to address whether recklessness is a sufficient state of mind to support such a conviction.

This omission drew the ire of Justice Samuel A. Alito Jr. in his partial concurring and partial dissenting opinion.  “The Court’s disposition of this case is certain to cause confusion and serious problems,” he wrote. “Would recklessness suffice?  The Court declines to say.  Attorneys and judges are left to guess.”

Clarence Thomas offered a similar criticism in his dissenting opinion:  “Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule – any clear rule.”

The Court’s concern about protecting those who do not intend statements to be threatening is laudable. However, the Court’s failure to address the First Amendment arguments and identify more precisely the mental state required for threat convictions is far less – and failed to address issues that also included the nature of statements made via social media.

David L. Hudson Jr. is the First Amendment Ombudsman for the Newseum Institute.

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