Citing
rap lyrics, the nation’s highest court ruled a death threat on a Facebook wall
might not legally be considered one.
Today, the Supreme Court held that
you can post a threat to kill your wife on Facebook, but you’re not guilty of
making a threat.
This is good news if you’re focused on free speech,
especially online. It’s bad news if you’re concerned about the capacity of
information technology to amplify threats, stalking, and coercion.
The result in the case, Elonis v. U.S., comes as something of a surprise,
especially because it was a 7-2 decision, with Chief Justice Roberts writing
for the court. That means the court’s liberal wing, the moderate-conservatives
(Kennedy, Roberts) and even Justice Scalia were all in agreement.
The reason, however, was not the First Amendment.
Court-watchers, and the defendant, Anthony Elonis, noted that the “threat” was
simply rap lyrics, and debated whether
they were constitutionally protected. But the Court itself didn’t go
there, instead basing its ruling purely on the federal criminal statute.
That statute says that anyone who “transmits in interstate
or foreign commerce any communication containing any threat to kidnap any
person or any threat to injure the person of another” is guilty of a felony.
But what is a “threat,” exactly? Specifically, does it require evidence of an
actual intent to harm the person, or is it enough “that a reasonable person
would regard Elonis’s communications as threats”?
The district court had said the
latter, but today, the Supreme Court disagreed. Threatening language is not
enough. Targets feeling threatened is not enough. Criminal law requires mens rea, an “evil mind,” and in this case, the Court
held that there must be some specific intention to threaten. Since that wasn’t
established in this case (and since Elonis assiduously denied having it) the
Court threw out his conviction.
(In dissent, Justice Thomas argued that a “general intent”
should be sufficient, while Justice Alito argued for an intermediate standard
of “recklessness.”)
culled from the Daily Beast
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