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.