Supreme Court Rules That You Have To Intend A Threat For It To Be A Real Threat

Lots of people have ill-will and mountains of unflattering things to say about their exes. Many of those people say those things online. But if your rant happens to be filled with violent language that makes your former partner afraid for their safety, even if you say you had no intention of ever following through, is it still a real threat?

That was the question before the Supreme Court in Elonis v. United States, which the Court decided 7-2 in favor of the individual convicted of making those threats.

As a refresher, the case centered around a particular man’s (Mr. Elonis) angry Facebook rants against his ex-wife. She perceived them as threats, and filed for a restraining order. In response, he escalated his rhetoric, including some potentially threatening allusions toward the FBI agent who visited his home.

For these threats, Elonis was arrested and indicted by a grand jury. However, he then sought to have the charges dismissed, arguing that prosecutors had no evidence that he intended to follow through on his rants. The difference between the two? Intent to follow through transforms the statements into threats, which are not protected free speech; the absence of intent means he’s just a loudmouthed jerk, but a constitutionally protected one.

The court disagreed, and held that when a statement is made “in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intent” to harm, that it’s a threat. Elonis was convicted on four of the five counts.

He appealed the conviction, as one does. An appeals court sided with the first court, agreeing that the only proof required to determine whether a statement posed a true threat was if “a reasonable person would foresee that the statement would be interpreted” as a threat. The appeals continued, and that’s where the Supreme Court comes in.

SCOTUS was to decide the answer to one big question, broken into two legal statements: Does convicting someone for making threats require proof of their intent to threaten, or is it enough that a “reasonable person” would see said statement as a threat?

In the majority opinion (PDF), the Court essentially ruled yes and no, in that order. Or, more specifically: “Communicating something is not what makes the conduct ‘wrongful.’ Here, ‘the crucial element separating legal innocence from wrongful conduct’ is the threatening nature of the communication. The mental state requirement must therefore apply to the fact that the communication contains a threat.”

The opinion continues:

In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”

In short? The intent behind an illegal action is critical to the application of criminal law — state of mind matters, and the courts are not allowed to ignore it. Because those lower courts did did, their conviction of Elonis is invalid.

The Supreme Court’s ruling does not address whether Elonis’s statements were in fact threats, or whether he did have the intent to follow through and harm or kill his ex-wife and others given half a chance. It only determines that those were matters that lower courts were, in fact, supposed to determine and prove when carrying through their case.

Chief Justice Roberts wrote the Court’s opinion, joined by Justices Scalia, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Justices Alito and Thomas filed separate dissents.

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