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Unanswered Questions in the Facebook Threats Case

The U.S. Supreme Court today decided the Facebook threats case, United States v. Elonis.  Unfortunately, the Court left unanswered two major questions -- one on the required mental state for the offense and the other on the limits of the First Amendment.

Elonis made statements on his Facebook page regarding his wife and others that, in context, most reasonable people would regard as threats.  The jury was instructed on a "reasonable person" test, in accordance with the overwhelming weight of authority, and found him guilty.

Citing a Ninth Circuit case, Elonis argued that he could only be convicted if he subjectively intended the statements to be threats, regardless of how obviously they are threatening.  Today's opinion, citing the oral argument transcript says, "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."  But that certainly was disputed prior to the oral argument.  Elonis was going for only the first part, what the Model Penal Code calls "purpose" as distinguished from "knowledge."  Under that view, a person could make the most explicit threats, scaring the hell out of the victim, and then defend on the basis he was "just kidding."  Attacking that extreme view was the primary reason CJLF filed a brief in this case.  The Court rejects it today.

A third mental state that the Model Penal Code considers sufficient for criminal liability is "recklessness."  Even if the maker of a threatening statement does not subjectively know it will be perceived as a threat, does he violate the statute if he acts with reckless disregard of that possibility?  That important question was briefed, albeit briefly, in Part I B of our brief.  The parties did not brief it, though, so the Court declines to rule on it and on the First Amendment question of whether recklessness is constitutionally sufficient. 

Justice Alito, concurring in part and dissenting in part, nails it:

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.

There is no justification for the Court's refusal to provide an answer.  The Court says that "[n]either Elonis nor the Government has briefed or argued" the question whether recklessness is sufficient.  Ante , at 16.  But in fact both parties addressed that issue.  Elonis argued that recklessness is not enough, and the Government argued that it more than suffices.   If the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument.  In my view, however, we are capable of deciding the recklessness issue, and we should resolve that question now.
I think we will count this one as a draw.  We defeated the primary threat, but too much remains unanswered.  It is disappointing, but we will fight the battle again another day.


Unless I am misreading their opinions, Justices Alito and Thomas seem to believe that the Court doesn't even decide if purpose or knowledge suffice. But, rather, narrowly holds that the lower court's jury instruction was defective because it only required negligence.

Perhaps this is a fine distinction between the Court stating that the parties didn't "dispute" that purpose or knowledge would suffice (thus the cite to the oral argument transcript), and the Court's actually issuing a holding to that effect. But, from my reading, that is how Justices Alito and Thomas read the Court's opinion.

Justice Thomas says, "But [lower courts] can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement,as the opinion carefully leaves open the possibility that recklessness may be enough."

Although the Court does not actually hold that knowledge is sufficient, as Justice Alito says in the passage quoted in the OP, I expect that the circuits that previously followed the "reasonable person" test will, at a minimum, hold that knowledge that the communication would be perceived as a threat will suffice. Most will probably hold that recklessness is sufficient, and that will set up the next circuit conflict for the Court to resolve, God knows how many years and how many victims in the future.

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