Free speech and threatening language

Anthony Elonis seems like a thoroughly unpleasant person. The former amusement park worker wrote Facebook posts threatening to kill his estranged wife who had left him and taken their two children, harming his co-workers, shooting children in a kindergarten class, blowing up police officers with explosives, killing an FBI agent, and so on.

Here are samples of Elonis’s writings. It is pretty awful stuff and one can easily understand why his wife became fearful for her life.

“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.”

Here’s another:

“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?”

And another:

“You know your s***’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent lady stood so close
Took all the strength I had not to turn the b**** ghost Pull my knife, flick my wrist, and slit her throat Leave her bleedin’ from her jugular in the arms of her partner
So the next time you knock, you best be serving a warrant
And bring yo’ SWAT and an explosives expert while you’re at it
Cause little did y’all know, I was strapped wit’ a bomb Why do you think it took me so long to get dressed with no shoes on?
I was jus’ waitin’ for y’all to handcuff me and pat me down
Touch the detonator in my pocket and we’re all goin’ [BOOM!]
Are all the pieces comin’ together?
S***, I’m just a crazy sociopath
that gets off playin’ you stupid f***s like a fiddle
And if y’all didn’t hear, I’m gonna be famous
Cause I’m just an aspiring rapper who likes the attention
who happens to be under investigation for terrorism cause y’all think I’m ready to turn the Valley into Fallujah
But I ain’t gonna tell you which bridge is gonna fall into which river or road
And if you really believe this s***
I’ll have some bridge rubble to sell you tomorrow [BOOM!][BOOM!][BOOM!]”

His employer saw his words as a threat to other workers and fired him, and also informed the FBI about his threats and they started monitoring him. His wife was granted a protection-from-abuse order against him by a state court.

Elonis was then charged with violating a federal statute 18 U. S. C. §875(c) that makes it a crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” But what constitutes a ‘threat’? The issue at his trial was whether, as he claimed, the government was required to show that his intent was on making a ‘true threat’. Since his posts were sprinkled with disclaimers that said that he was writing rap lyrics and that his words were a form of therapy for him to vent his feelings and frustrations with his life, he argued that he should have the same degree of license that, say, rap musicians who call for the deaths of police have. Elonis argued that the government had failed to make the case that he intended the threat to be viewed as real by the recipient, and that his many disclaimers that he was indulging in a form of therapy should have shown that these were not true threats.

The judge in the case instructed the jury that a different standard applied, and that it requires only the intent to communicate words that the defendant understands that a reasonable person would view as a threat. In the light of the judge’s instructions, the jury found him guilty on four of five counts, and not guilty of the one of threatening his co-workers. A federal appeals court upheld the verdict.

On appeal, on June 1 the US Supreme Court overturned the guilty verdict 7-1, with justice Alito agreeing to part and dissenting in part, and justice Thomas dissenting. You can read the opinions here. The court ruled that the fear of the victim was not enough, neither was the standard that a reasonable person would view the threats as credible. What was necessary was to show intent on the part of the person making the threats to issue a ‘true threat’, and that the view of a ‘reasonable observer’, while suitable for civil cases, was too low a bar for conviction in criminal cases.

As chief justice Roberts wrote in the majority opinion:

This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal.” As Justice 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.” The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Although there are exceptions, the “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.”

Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct— awareness of some wrongdoing.”

The court ruled that the government had not made the case that there was such an awareness of wrongdoing on the part of Elonis.

The ruling is widely seen as a victory for free speech rights, even though there was pretty much universal agreement that Elonis’s behavior was pretty despicable. But it has almost always been the case that free speech rights are most at risk when unpleasant people are making unsavory statements because it is at those times that one is tempted to let one’s distaste of the speech and the person making it override one’s commitment to the right to speech.

Lyle Denniston has more analysis of the case.


  1. says

    The wrestling entertainer and bad actor Hulk Hogan went through a very contentious and public divorce. In an interview about it, he said, “I get OJ now.” Legally, that may not constitute a direct threat to murder his former wife, but I suspect she took it as one. Recall that Hogan said that in April 2009, two years after Chris Benoit murdered his wife, son and then himself. Murderous and violence by wrestlers against family members is as common as cops who murder and hurt theirs, so she had genuine reason to fear for her life.

    Aimed directly or not, “only fantasizing” or not, it doesn’t matter. Words like those are intended to intimidate, and they do. Words like those go beyond casually hurled insults on message boards (e.g. “die in a fire” or “kill yourself”). Why does “May Obama follow in the footsteps of Lincoln and McKinley” get investigated by the secret service but a direct death threat with fake “qualifiers” doesn’t?

  2. DonDueed says

    This is the same Supreme Court that ruled that huge cash donations to politicians are only illegal when there is an explicit quid pro quo.

    This ruling seems to follow a similar line of thought.

  3. lanir says

    The criminal court basically instructed her to sue him in civil court. So there can be liability for free speech. It’s not entirely free of consequences and it should not be.

    Effectively what this boils down to is that making the statements in a public forum is itself a form of communication beyond the actual content of the statements themselves. Specifically it helps communicate who your intended audience is. The lower courts thought that communication was unambiguously saying “the audience is the person I’m writing about” and they thought it said so clearly enough to convict this guy. The supreme court did not see a public statement as obviously being aimed at whoever he was writing about at the time. It sounds like they were right from the snippets I’ve heard.

    If the lower court decisions had held, essentially anything one said in public that related to another person could be construed as an open letter to that person. I have no earthly clue what that would do to news media, encyclopedias, etc. but it sounds like it would be one helluva mess.

  4. Nick Gotts says

    The Supremes’ ruling seems to me completely batty: if the defendant has “the intent to communicate words that the defendant understands that a reasonable person would view as a threat”, then they intend to issue a threat.

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