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Threats, "Just Kidding," and Freedom of Speech

Suppose someone who is angry at you says he is going to hunt you down and kill you.  Suppose further that all of the circumstances of the statement are consistent with him really meaning it.  If the police go and arrest him for making criminal threats, and he says "oh, I was just kidding," is that a defense?  If the jury believes him, or if the prosecution is unable to disprove the claim beyond a reasonable doubt, does he walk?  Does the First Amendment require this result?  That is the issue before the United States Supreme Court in Elonis v. United States, No. 13-983.
Crimes generally are defined with both a prohibited act and a wrongful intent.  Very rarely do we punish people criminally for acts with innocent intent, no matter how bad the consequences.  Negligence is generally sufficient for a civil lawsuit, but usually not for a criminal prosecution.

The reason goes deep into our basic concept of justice.  "Even a dog distinguishes between being stumbled over and being kicked," Justice Holmes famously said.

In defining crimes, legislatures can define gradations of mental state to target the most evil crimes with more severe punishment.  Premeditated murder is murder in the first degree, while killing the "heat of passion" is voluntary manslaughter, a considerably lesser offense, even though the victim is equally dead in both cases. 

Breaking and entering a house with the intent to steal something is burglary, while breaking and entering alone is some lesser offense.  This distinction is traditionally called the distinction between "specific intent" and "general intent."  That classification has long been criticized, and since 1962 the American Law Institute's Model Penal Code has favored a different breakdown.  In descending order of culpability, the mental states are purpose, knowledge, recklessness, and negligence, the last of these being only rarely sufficient.

When a legislature enacts a statute against threats, it can, if it chooses, require "specific intent" or "purpose" to make a threat.  The Supreme Court case of Virginia v. Black (2003) (CJLF brief here) involved a statute against cross burning limited to burnings with an intent to intimidate.  In that instance, there was good reason to keep the statute narrow.  It was subject to a content-discrimination attack in any case, and the prohibited act is one that depends strongly on context for its threatening character.

But does the First Amendment require that the defendant subjectively intended to make a threat?  Is a statute with a lesser mental state requirement unconstitutional?  Or can we decide that making statements that most people would consider to be threats is conduct deserving to be punished regardless of the speaker's subjective and undisclosed purpose?

The Supreme Court has already required that the statement, on its face and under its circumstances, be one that objectively would be taken as a true threat.  Back during the Vietnam War, a person who made a statement about targeting President Johnson was found to be engaged in protected speech when under the circumstances the statement was clearly political hyperbole and not serious.  True threats must also be targeted.  Virginia v. Black was actually two cases.  The guy who burned a cross at a KKK rally got off.  As hateful as his symbolic speech was, it was not targeted at anyone in particular.  The two punks with a dispute with a black family next door who attempted to burn a cross on their lawn had their convictions upheld.

Given these limits, do we need a further "just kidding" defense?  No, we do not.

Notwithstanding the famous schoolyard response to taunts, words can hurt people.  Threats, in particular, when made under circumstances indicating they are genuine, can disrupt a person's life and cause serious psychological injury.  Living in fear is no way to live.

Frequently in First Amendment cases the proponents of a broad interpretation speak lyrically of the need for "breathing space" for speech.  Seriously, folks, do we really need breathing space for threats or almost-threats?  Is anyone's ability to express himself on any matter of public or even private concern really inhibited in the least by a requirement to keep a safe distance from statements like "Fold up your PFA [protection from abuse order] and put it in your pocket.  Is it thick enough to stop a bullet?"  That is what Anthony Elonis said in this case, with "you" being his wife (soon to be ex-wife).

Do the times in which we live, including the communications revolution of the Internet, require more protection for threats and almost-threats?  The ACLU actually claims that.  I find the assertion preposterous.  Worrying about chilling speech on the Internet today is like worrying about a drought in the middle of Hurricane Katrina.  We have gone waaaaay too far in the opposite extreme.  Many Internet forums today have degenerated into cesspools where the most basic standards of elementary civility are routinely violated.  Far from encouraging speech of value, this degeneracy leaves many forums dominated by the people whose only interest is spewing bile, causing the people who actually want to discuss issues in a thoughtful manner to withdraw.  A little chilling would be a good thing, IMHO.  But there won't be any chilling.  An affirmance in this case will have no discernible effect on Internet speech.

The interpretation of the federal threat statute adopted by most circuits is that it requires that the defendant know what he said and that a reasonable person would consider it a threat.  That is correct and constitutional.  One plausible alternative, if the Court wants to go full Model Penal Code, is that the defendant had a purpose to make a threat or he knew it would be taken as a threat or he acted with reckless disregard as to whether it would be taken as a threat.  In practice, that would get us to essentially the same place.

Despite huffing and puffing to the contrary, the subjective reaction of the listener is not an element of this crime.  Making a statement that a particularly sensitive listener incorrectly interprets as a threat, when most people would not, is not a crime and shouldn't be.

Freedom of speech does not require a "just kidding" defense to making threats.  The Supreme Court should not create one.  CJLF's brief, filed today, is here.



How can you say that "all of the circumstances of the statement are consistent with [Elonis] really meaning" that he was "going to hunt [his wife] down and kill [her]? What about these circumstances: 1) the statements were made on his own facebook page rather than directed to the supposedly "threatened" wife; 2) one statement is a close paraphrase of a comic's parody about threatening to kill the President, as made obvious by the fact that Elonis actually linked to the original parody; and 3) the guy's obviously obsessed with Eminem, whose music contains equally graphic fantasies about killing his wife?


The first paragraph is not a summary of the facts of this case. It is a statement of the rule of law that Elonis seeks. If his position prevails, subjective intent will be required regardless of how unambiguously clear the threatening nature of the statement in its context may be.

That said, I don't think the circumstances of this case negate the threatening nature of the statement or warrant the "supposedly." If I were in the wife's position, I would certainly have considered his statements threats, especially the one quoted later in the post.

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