This morning the Supreme Court overturned the conviction of a man who had been found guilty in federal court of posting vicious, explicit threats on Facebook. The majority opinion was written by conservative Chief Justice John Roberts.
Sounds pretty bad, right? Mother Jones thought so, titling its post SCOTUS Delivers Good News for Online Trolls. Other outlets quickly followed suit.
But most of these stories were clearly written in haste, and as is so often the case with Supreme Court decisions, the core of today’s ruling isn’t in the soundbites. In fact, this decision is a loss for those who make threats online, and a win for folks who want to see them punished.
So what is everyone getting wrong? Let’s take a look.
Back in 2010, a guy named Anthony Elonis spent a bunch of time on Facebook harassing his estranged wife. Like many internet trolls, he defended his abuse — which eventually grew to target work colleagues, amusement park employees, and even local schoolchildren — as exercises in protected speech. His posts were rap lyrics, he said. They were fictional. They carried disclaimers and links to Wikipedia articles. Free speech, man.
The feds didn’t buy it, and sent two FBI agents to his house. After they left he put up a mocking Facebook post saying he’d wanted to slit the female agent’s throat in his living room, and that he’d been wearing a bomb under his clothes that he would have detonated if they’d tried to arrest him.
It didn’t take long for him to be arrested after that.
Elonis’ defense against the ensuing charges was pretty much what you’d expect. He didn’t really intend to harm anyone, he was engaging in artistic expression, the posts were intended as therapy and catharsis, not terrorism. The jury thought that was garbage, and convicted him on four federal felony charges. Today the Supreme Court set aside their verdict.
At this point, you’re probably wondering where I’m going with this. The guy made obvious, targeted, specific threats, a jury found him guilty, and the Supreme Court tossed the conviction. Win for him, loss for justice. Right?
Not quite. Because one of the things the lawyers argued about at trial was what the jury had to conclude to convict him. His lawyers claimed that unless the prosecution could prove he’d intended to carry out the threats he was innocent, and the government said that his intent didn’t matter — as long as he’d written the words, and a reasonable person would view them as threatening, he was guilty.
The trial judge agreed with the government, and instructed the jury accordingly. Moreover, they allowed the prosecutors to do the same. In closing arguments, one of the government attorneys said that “it doesn’t matter what he thinks” — that what was going on in Elonis’ head when he put up the posts was irrelevant to the case against him.
Whether that prosecutor was right was the question before the court today.
And it turns out, despite what a lot of folks are writing this afternoon, that it’s not a simple yes-no question. The court found that the judge instructed the jury incorrectly, so they overturned the conviction. (Elonis could be tried again, though it’s not clear whether he will be.) But in deciding what the judge should have said, the Supremes didn’t have to pick between Elonis’ position and the federal government’s, and in fact they rejected them both. Why they rejected them, and what they embraced instead, is where things get interesting — and where the targets of online harassment can find a lot to like.
News outlets described the ruling as a narrow one, and in a sense that’s true — the court set several of the relevant issues aside for later consideration. (We’ll get to those in a bit.) But the majority opinion did take on the legal claims that Elonis made in court (and, before that, online), and knocked down the most important of them.
Here’s the biggest: Elonis claimed that for a jury to conclude that his statements were threats, prosecutors had to prove that he intended them as threats — that they had to show he wasn’t joking or writing fanfic or otherwise screwing with his audience.
The court rejected that argument. Flatly.
This is the first victory in the opinion, and it’s a big one. The court said that a threat counts as a threat under federal law not only if it’s intended as a threat, but also if the writer knows it will be interpreted that way:
There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.
Note that “there is no dispute” language. If you make a threat online, and you know the person who receives it will see it as a threat, you’re guilty of violating federal law. It doesn’t matter if you claim that it’s protected speech, or put a smiley face at the end, or point out later that the threat was really just lyrics from an old Beatles song. If you send a threat and you know it’ll be interpreted as a threat, you’re guilty. Period.
That one sentence will serve as a tremendous weapon in online disputes over threatening speech from today forward. “There is no dispute.” And there is no dispute — the majority opinion in which that sentence appears was signed by seven of the nine justices, and neither of the two who dissented from the opinion of the court disagreed with that aspect of it. It’s unanimous.
And it’s also not the end. Because there’s another possible way of understanding legal culpability here, and while the court didn’t explicitly address that one, they strongly hinted — with backup from an unexpected source — that they’re likely to resolve it in a way that favors those targeted by such threats.
The issue here is the legal standard of recklessness — in essence, willful disregard of the risk of a particular consequence. You can think of it this way:
Elonis said that unless he intended the threat as a true threat, he was innocent. The court knocked that down. He also said that if he merely knew it would be taken seriously, but didn’t mean it seriously, he was innocent. The court knocked that down too. The prosecutors said it didn’t matter what he was thinking, and the court rejected that analysis as well. But it turns out that there’s another way of framing the issue — a way of splitting the difference between the prosecutors’ interpretation and the defense’s — and that’s recklessness.
If he knew his comments would be taken as threats, he was guilty, whether he meant that way or not. But what if he knew they might be taken as threats, but didn’t care? That’s the recklessness standard, and it’s going to be a big deal in future prosecutions.
If you think about it, it’s pretty difficult to prove someone knew somebody would take something as a threat. Not impossible, and not as hard as proving they intended it as a threat, but hard. Proving they considered — or must have considered — the possibility, though? That’s easier. If the recklessness standard is adopted, putting these guys away is easier.
So what did the court say about the recklessness standard? Basically that they didn’t have to address it, so they wouldn’t. The Supreme Court doesn’t like answering hypothetical questions, particularly ones that they haven’t been fully briefed on, and so they decided to leave this one for another day.
Often this happens when the court has a strong majority for a particular outcome, but they’re not sure they’ll be able to hold it together if they fold in another issue. In this instance, though, there’s good reason to believe that the court will likely adopt the recklessness standard down the road.
The case for the recklessness standard is made powerfully in a separate opinion filed by conservative justice Samuel Alito. Recklessness is, he argues, the obvious standard to apply in this instance — precedent, history, and common sense demand it, and justice does as well:
Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.
After making his case for the recklessness standard, Alito urges trial-level and appellate judges to embrace it, noting that “nothing in the Court’s noncommittal opinion prevents lower courts from adopting that standard.” Alito is right that the majority did not preclude it, and right that they showed no particular interest in discouraging it. I suspect that he is also right to imply — as he does — that if the court had confronted the recklessness question today, he would have been writing for the majority.
There’s one more thing worth noting about Alito’s passionate and eloquent opinion, and that’s that he directly takes on the question of free speech, and does it beautifully.
The majority sidestepped free speech, saying — as with recklessness — that the question of whether this law is consistent with the First Amendment wasn’t before them today. Alito, though, charges forward. First he demolishes the “intent is magic” argument we see so often on the internet:
Whether or not the person making a threat intends to cause harm, the damage is the same.
From there, he moves on to the question of freedom of expression more generally:
Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. […] If [a] celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. “Taken in context,” lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.
Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.
This is great stuff, and we have reason to believe that it will be quoted approvingly in a majority opinion in the very near future.
Today was a bad day for internet harassers, and a very good day for the rest of us.
Update | Fascinating, wonky defense by law prof Orin Kerr of the majority’s decision to sidestep the recklessness issue. As he puts it, federal law on mental states like “recklessness” is “a mess … a mishmosh of confusing common law mental states with some occasional Model Penal Code (MPC) tossed in for flavor.” And while the MPC has a specific, technical definition of “recklessness,” it was written a couple of decades after the law in question, making using the latter to interpret the former somewhat dicey.
Defining “recklessness” is likely to be complicated, in other words, and SCOTUS was — Kerr says — sensible to leave it for another day. An interesting interpretation, not least because it appears to lend support to my impression that the majority found the recklessness standard appealing. (If they were going to adopt a higher, clearer standard, then defining “recklessness” wouldn’t be an issue.)
Second Update | A Scotusblog analysis of today’s decision points out something I (and everyone else I read today) missed — it’s not quite clear that Elonis’ conviction is going to be overturned after all: “It will be up to the Third Circuit, when the case is returned there, to sort out what, if anything, will happen to Elonis himself.” That analysis also points out that this case took an unusually long time to move from oral arguments to decision, typically a sign that the justices are having difficulty coming to agreement.
Third Update | I’ve seen a lot of folks online suggesting that there’s no connection between the kind of speech Elonis engaged in on Facebook and actual violence, so it seems worth mentioning what Elonis is doing these days and why.
Turns out he’s in jail.
Not because of the threats against his ex-wife, though — he was released on those charges last year, having completed the mandatory portion of his sentence. No, this is about unrelated conduct.
Sometime after his release, Elonis started a relationship with a local woman. He moved in with her at some point, and she later asked him to move out. He didn’t. Her mom came to stay with her until he left, and on April 29 the three of them got into an argument over his continued presence. During the course of that argument he threw a metal cooking pot at the mother, hitting her in the head.
He’s been locked up since.