Instinct tells most of us that when Anthony Elonis posted lyrics like these on his Facebook page, he genuinely wanted to frighten some people: “That’s it, I’ve had about enough/ I’m checking out and making a name for myself/ Enough elementary schools in a ten mile radius/ to initiate the most heinous school shooting ever imagined/ and hell hath no fury like a crazy man in a kindergarten class/ the only question is … which one?” Elonis’ words, which echo with memories of Columbine and Sandy Hook, are now part of a landmark Supreme Court opinion.
Federal law makes it a crime to transmit in interstate commerce “any communication containing … any threat to injure the person of another.” The law itself is silent on whether the speaker needs to be aware that he is threatening someone, or whether it is enough for a reasonable listener to feel truly threatened.
When Elonis’ wife took their kids and left him, he started to act out on Facebook. He changed his user name to Tone-Dougie, his new rap alias, started posting graphically violent lyrics about his estranged wife and co-workers, and claimed it was “therapeutic.” His employer fired him. His wife got a protective order. Elonis persisted. He wrote graphically about the fact that it was illegal to threaten to kill his wife, and he wrote graphically about how he would like to kill her, but he also wrote: “Art is about pushing limits.” He danced right along the line of frightening her and performing constitutionally protected acts of lyric art. When an FBI agent showed up at his home to investigate his conduct, he posted this after she left: “Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat.”
When a jury convicted Elonis on four counts of violating the federal threats statute and sentenced him to 44 months in jail, the test the jury used was whether a reasonable listener could objectively believe that what he wrote was a “true threat.” His ex-wife and others testified that they were genuinely terrified by his posts. The 3rd Circuit Court of Appeals upheld the conviction. Its standard was not whether Elonis intended to make the threat but only that he intended to write what he wrote. So Elonis appealed to the Supreme Court, arguing that he had only been emulating Eminem, these lyrics were never intended as threats, it was all therapeutic, and the “objective reasonable listener” test was wrong.
Monday he prevailed at the Supreme Court, which tossed his conviction and sent the case back to be re-evaluated under a stricter standard: “Federal criminal liability does not turn solely on the results of an act without considering the defendant’s mental state,” wrote Chief Justice John Roberts. What Elonis knew and wanted mattered.
The court, in a 7–2 opinion penned by Roberts, declined to say specifically what standard was in fact appropriate, and it also sidestepped any broad First Amendment announcements about violent Internet speech. The court limited itself to the announcement that for purposes of this statute, it’s not enough to say a reasonable person would find the threats to be genuine. Elonis’ mindset matters, too.
This was a tricky case for many court watchers because it marched into a brave new world of noxious online communication (where statements intended for one purpose spin out into something else entirely) and into an unknown realm of rap music and violent lyrics, which are sometimes criminalized simply because they are so scary. It also implicates the very real claims that women are uniquely susceptible to online threats and violence, an argument that the government raised and lost in this instance. But it’s also a tricky case because one never quite gets past the sense that Anthony Elonis very much wanted to terrorize and shame his estranged wife and that he just got away with something that creepy men get away with all the time.
The National Center for Victims of Crime issued a statement late Monday expressing frustration with the decision. Describing the Internet as “the crime scene of the 21st century,” Michelle M. Garcia, director of the Stalking Resource Center, warned that “this decision fails to recognize that victims of stalking experience fear regardless of the offender’s intent. If what constitutes a threat is not clearly defined, our concern is that this ruling provides enormous space for stalkers and abusers to act.” Now the case will go back to court, and jurors may find that Elonis meets even the stricter standard. Either way, this isn’t yet over for Tone-Dougie.
And take heart, dear readers, in the fact that the court declined to take a big swing at this case. The justices decided it on narrow statutory grounds instead of broad constitutional ones, leaving for another day some of the haunting questions about gender, stalking, threats, and the Internet. Indeed the court decided this case so narrowly that the two dissenters—Justices Clarence Thomas and Samuel Alito (who dissented only in part)—felt that the majority simply created confusion. They sought to clarify the actual test that should be used by the courts below, fretting for future Facebookers who can’t suss out the rules. For now, the Supreme Court said only that the reasonable listener standard would not suffice to support a criminal conviction of making a true threat.
Take heart, also, from this 2014 article in the Columbia Law Review, authored by the University of Virginia’s Leslie Kendrick, who argues against the legal principle that the state of mind of the speaker is irrelevant. Speakers need to be treated as autonomous agents. The notion of strict liability—that one’s behavior is all that matters regardless of state of mind—punishes speakers based on how their speech is interpreted, without regard for what they sought to do. As Kendrick writes, “It therefore punishes speakers for an aspect of their speech to which they have no necessary relation.”
The chief justice, writing for seven, makes a similar contention: “The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that ‘mere omission from a criminal enactment of any mention of criminal intent’ should not be read ‘as dispensing with it.’ This rule of construction reflects the basic principle that ‘wrongdoing must be conscious to be criminal.’ ” As former Supreme Court Justice Robert Jackson explained, this principle is “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Particularly in the realm of punishing speech, we want to protect the agency, the choices, and the autonomy of the speaker, even when, as in the case of Anthony Elonis, his speech is vile.
The disagreement among the justices is limited to how narrowly the case should have been decided—narrow and vague, or less narrow and slightly clearer. But nine votes seem to want to be cautious and slow in this brave new world, even when threats emanate from angry misogynists in stained T-shirts—a world where agency and autonomy still matter, perhaps now more than ever.