Academic journal article Harvard Law Review

Federal Threats Statute - Mens Rea and the First Amendment

Academic journal article Harvard Law Review

Federal Threats Statute - Mens Rea and the First Amendment

Article excerpt

Federal law has criminalized communicating threats in interstate commerce since 1939. (1) Even though this prohibition is in tension with principles of free speech, (2) the Supreme Court has held that "true threats" are not protected by the First Amendment. (3) Yet the Court has not fully defined this category of unprotected speech. (4) Two central and unresolved questions are first whether a defendant can be convicted under the federal threats statute absent proof that he subjectively intended to threaten anyone, and second, if the statute itself does not require this evidence, whether the First Amendment does. In recent decades, a majority of lower courts have coalesced around a rule permitting criminal liability where a "reasonable person" would understand the defendant's words as a threat. (5) Last Term, in Elonis v. United States, (6) the Supreme Court disagreed with this standard and held that a conviction under 18 U.S.C. [section] 875(c) may not be based solely on a reasonable person's interpretation of the defendant's words. (7) The Court reversed the defendant's conviction on narrow statutory grounds rooted in principles of mens rea and did not reference the constitutional "true threats" doctrine. The majority, however, left undecided the minimum mental state required for criminal liability. As a result, lower courts are left to answer both questions originally presented in Elonis. Certain parallels between obscenity and threats, hinted at in Elonis, suggest one approach to this task.

In May 2010, Anthony Douglas Elonis's wife Tara left him. (8) In the months that followed, Elonis used his Facebook account to publicize violent rap lyrics that he wrote under the rap pseudonym "Tone Dougie." (9) Some of Elonis's posts contained alarming language directed at his newly estranged wife. (10) For example: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." (11) Things escalated in the months that followed; by November, Tara was frightened enough by Elonis that she obtained a Protection From Abuse order. (12) But the messages did not stop. In fact, Elonis responded: "Fold up your PFA and put it in your pocket[.] Is it thick enough to stop a bullet?" (13) Elonis eventually caught the attention of the FBI when he described online his plan to "initiate the most heinous school shooting ever imagined." (14) After two agents visited his home to investigate, Elonis wrote publicly about the "Little Agent Lady" that it "[t]ook all the strength [he] had not to turn the bitch ghost" by "slit[ting] her throat." (15)

In December, federal prosecutors intervened. (16) A grand jury in the Eastern District of Pennsylvania indicted Elonis for communicating a threat to injure the person of another in violation of 18 U.S.C. [section] 875(c). (17) Elonis moved to dismiss the indictment and argued that the Supreme Court's definition of "true threat" in Virginia v. Black (18) barred his prosecution absent proof that he subjectively intended to threaten the subjects of his posts. (19) The district court denied his motion. (20) At trial, the district court instructed the jury that Elonis could be convicted if a reasonable speaker would foresee that the relevant posts would be interpreted as threats. (21) The jury convicted Elonis, and the court sentenced him to forty-four months of incarceration followed by three years of supervised release. (22)

The Third Circuit affirmed. (23) Writing for the panel, Judge Scirica held that "Black does not clearly overturn the objective test the majority of circuits [have] applied to [section] 875(c)." (24) Instead, the "objective intent standard protects non-threatening speech while addressing the harm caused by true threats." (25)

The Supreme Court reversed and remanded. (26) Writing for the Court, Chief Justice Roberts (27) held that the district court's jury instruction erroneously employed a "reasonable person" standard "inconsistent with 'the conventional requirement for criminal conduct--awareness of some wrongdoing. …

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