Is a “Negligent” Threat Really a Threat?

Federal law makes it a felony to transmit in interstate commerce “any communication containing any threat  . . . to injure” someone. Anyone who sends a message intending to make a threat, or knowing that the communication will come across as a threat, has the state of mind required for a conviction under 18 U.S.C. § 875(c).

But what about someone who sends a message and doesn’t—but should—know that the recipient will view it as a threat? Has the sender violated section 875(c)? That was the question before the U.S. Supreme Court in Elonis v. United States, decided on June 1. (575 U.S. ___ (2015).)

Self-Expression or Something More?

The defendant in Elonis posted on Facebook what the Supreme Court termed “self-styled ‘rap’ lyrics” containing “graphically violent language and imagery.” He posted them under a pseudonym or stage name, sort of in the way that Marshall Mathers performs as Eminem. The posts often appeared “with disclaimers that the lyrics were ‘fictitious,’ with no intentional ‘resemblance to real persons.’”

The violent posts began after the defendant’s wife left him and took the couple’s two children. They led the wife to seek a protection-from-abuse order, which a court granted. Other subjects of the postings included co-workers, an unspecified kindergarten class, and law enforcement.

Here’s an example of the posts, this one in response to the protective order and accompanied by a link to Wikipedia’s page on freedom of speech:

“Fold up your [protection-from-abuse order] and put it in your pocket

Is it thick enough to stop a bullet?

Try to enforce an Order that was improperly granted in the first place

Me thinks the Judge needs an education on true threat jurisprudence

And prison time’ll add zeros to my settlement . . .

And if worse comes to worse I’ve got enough explosives to take care of the State Police and the Sheriff ’s Department.”

Lyrics like these resulted in five counts of violating section 875(c).

“Reasonable Person”

At trial, the judge instructed the jury that that the defendant could be guilty even if he didn’t intend the posts to be threats: The issue for the jurors was whether a reasonable person in the defendant’s position would anticipate that the statements would be interpreted as “serious expression of an intention” to inflict harm.

The jury convicted the defendant on four of the five counts, landing him a prison sentence of almost four years.

“Guilty Mind”

Before overturning the convictions, the Supreme Court explained the principle that “wrongdoing must be conscious to be criminal.” With rare exception, proof of every crime must require evidence of a “guilty mind.”

Chief Justice Roberts, writing for the majority of the Court, noted that the “reasonable person” standard regularly applies in civil lawsuits. But this standard—which asks whether someone has behaved negligently—doesn’t have much of a place in the criminal law.

Because of the jury instruction, the verdict in Elonis turned not on whether the defendant actually did, but whether a reasonable person would, regard the words in question as threats. To Roberts and company, the instruction violated a core principle: that federal criminal liability generally depends on the defendant’s state of mind.

The Court’s decision means that, at least when it comes to alleged threats under section 875(c), negligence doesn’t suffice for a conviction.

As for whether recklessness is enough, we still don’t know. The Court decided to leave that one for another day.