Supreme CourtThe Supreme Court has handed down its decision in Elonis v. United States, a case that had sweeping implications for free speech on the Internet. The Obama Administration sought to establish a low standard for criminalizing speech based on a reasonable person standard that would have gutted the requirement of scienter or intent in establishing a criminal threat. The Court adopted the narrowest basis to remand the case but it clearly rejected the lower standard sought by the Administration. In doing so, free speech dodged a bullet today and the Obama Administration came perilously close to rolling back on protections for free speech on both the Internet and social media.

The case involved Anthony Douglas Elonis, 31, who was convicted for postings on Facebook that were deemed threats of violence against his former wife. After his wife left him and he was fired from his job, Elonis (who is an extremely unsympathetic and obnoxious character) began to post rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, and law enforcement. While he posted statements that these posts were “fictitious” and not intended to depict real persons, his employer however saw them as threatening and called the police. He was charged with five counts of violating 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”

The Obama Administration argued that there was no need to show subjective intent on the part of Elonis and that the statute’s inclusion of the word “threat” only requires a showing that a reasonable person would take the words as “intent to do harm.” That effectively flips the standard to how a message is received as opposed to given. The Court refused to gut the standard:

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.” Morissette, 342 U. S., at 252.

The Court found that the Administration was seeking a fundamental change in the standard required to convict someone of a crime. The Court cited the long-standing principle that “wrongdoing must be conscious to be criminal.” While there are a few exceptions, the Court said that this country has imposed the “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.”

The 7-2 decision by Chief Justice John Roberts does not end the threat to free speech but it certainly avoids the worst case scenario in foreclosing the use of the lowest reasonable person standard.

The Court decided to allow the lower court to decide whether recklessness would be enough as a standard for a criminal charge – meaning that this issue will likely come before the Court again. The Court was able to avoid the free speech issues in the opinion for now but a return of the issue could put those issues front and center in the appeal. However, for now, the worst case scenario was avoided in this latest defeat by the Obama Administration.

Here is the opinion: Elonis


  1. One way to curb the behavior of the internet perp is to simply hire someone to kick his arse really bad. Take a photo of his damaged body and post it on the same internet site. Americans need to learn more from Sicily.

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