Online Threats: Government Must Prove Defendant Was More Than Negligent

Tags: Criminal Defense

In its recent decision, the Supreme Court clarified the mental state necessary to convict under the federal threat statute, 18 U.S.C 875(c). Instead of focusing on what a reasonable person would interpret a post to mean, prosecutors now must prove the defendant sent an online communication with some knowledge that their communication would be threatening. Whether the defendant must specifically intend to threaten or that he be reckless in doing so was left open by the Court.

Under federal law, whoever transmits in interstate commerce any communication containing any threat to injure or kidnap another person will be fined or imprisoned for no more than five years. What the statute does not state is whether the defendant must be aware of the threatening nature of his statements, or if it is enough that a reasonable person would find the messages threatening.

How Did This Get to the Supreme Court?

Anthony Elonis’s wife left him in 2010. In response, Elonis began posting self-written rap lyrics written under his stage name “Tone Dougie.” On facebook, he posted photographs of himself with co-workers and an adaptation of a sketch premised on a joke that it is illegal for him to say he wishes to kill his wife. Along with his “artistic expressions” Elonis also posted disclaimers that his expressions were fictitious and not targeted to specific individuals.

Elonis’s wife saw the posts and “feared for her life” so much that she applied for a protection order against him. Additionally, Elonis’s former employer passed the posts onto the FBI for monitoring after firing him for similarly “threatening” messages. Elonis was charged with five counts of communicating threats online in federal court.

At trial, the jury was instructed that a Elonis was guilty if “a reasonable person would foresee that his statements would be interpreted as a threat.” Elonis was convicted and his appeal affirmed the lower court’s decision.

What Did the Court Say?

The Supreme Court held the jury instruction issued amounted to a negligence standard, which is insufficient to support a criminal conviction because is below the intent required for criminal liability.

Negligence is a concept in tort law that typically arises when someone or something is injured by another person’s actions. In negligence cases, the question posed to the jury is whether or not the defendant acted as a reasonable person would in same or similar circumstances. In negligence, a defendant’s intent is often irrelevant because it is not necessary to demonstrate that they acted carelessly or unreasonably.

In criminal actions, however, some level of mens rea (guilty mind) is necessary. Whereas the jury instructions in this case focused on how the message was received (i.e. whether a reasonable person would interpret the defendant’s messages to be threatening), the Court held this focus should be on the defendant’s intent in sending the messages and not the recipient’s or viewer’s interpretation of those messages.

What is the Required Intent Now?

The Court held that in order to find a defendant guilty under the federal threat statute, he must transmit a communication with either (1) the purpose of issuing a threat, or (2) with knowledge that the communication will be viewed as a threat.

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