Justices Toss Facebook-|Based Threat Conviction

     WASHINGTON (CN) – A man who made threatening posts on Facebook while experiencing trouble at home and work won a reversal Monday from the U.S. Supreme Court.
     Anthony Elonis was arrested in late 2010 after a downward spiral of several months during which his wife left him and took the kids, and he lost his job at Dorney Park & Wildwater Kingdom.
     Among threatening Facebook posts that Elonis had made with regard to his work was one in which he wrote the caption “I wish” for a Halloween-themed picture where he held a knife to the neck of a co-worker.
     He later wrote, “Ya’ll think it’s too dark and foggy to secure your facility from a man as mad as me.”
     The various posts that Elonis made about wanting to kill his wife also led her to receive a protection of abuse order against him.
     Elonis went on to boast that he has “enough explosives to take care of the state police and the sheriff’s department.”
     An FBI agent went to the man’s door soon after he posted: “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?”
     He reacted online to that visit by threatening to slit that agent’s throat and detonate a bomb.
     Pennsylvania prosecutors soon had Elonis convicted under Section 875(c) of Title 18, which criminalizes the transmission “in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.”
     Though the 3rd Circuit affirmed that verdict, the Supreme Court took up Elonis’ appeal last year and reversed Monday.
     Its holding hinges on whether Section 875(c) “also requires that the defendant be aware of the threatening nature of the communication, and – if not – whether the First Amendment requires such a showing.”
     “When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute ‘only that mens rea which is necessary to separate wrongful conduct from “otherwise innocent conduct,”‘” Chief Justice John Roberts wrote for the majority.
     There is no dispute that a defendant under Section 875(c) must know that he is transmitting a communication, but Roberts cited precedent that says “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,” Roberts wrote.
     “Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person,” the decision continues. “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.’ Having liability turn on whether a ‘reasonable person’ regards the communication as a threat – regardless of what the defendant thinks – ‘reduces culpability on the all-important element of the crime to negligence.'”
     There is longstanding reluctance “to infer that a negligence standard was intended in criminal statutes,” Roberts added.
     Because Elonis’ conviction improperly rested on the negligence standard, it cannot stand.
     Justice Samuel Alito wrote in a partial dissent that he would have the lower court “decide in the first instance whether Elonis’s conviction could be upheld under a recklessness standard.”
     On remand, the 3rd Circuit should also be asked “to determine if Elonis’s failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction.” (Emphasis in original.)     
     Justice Clarence Thomas dissented in full, noting that 11 federal circuits courts of appeal have held that the federal law under which Elonis was convicted “demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context.”
     “Rather than resolve the conflict, the court casts aside the approach used in nine circuits and leaves nothing in its place,” Thomas wrote. “Lower courts are thus left to guess at the appropriate mental state for §875(c). All they know after today’s decision is that a requirement of general intent will not do. But they can safely infer that a majority of this court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough.
     “This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent. Although I am sympathetic to my colleagues’ policy concerns about the risks associated with threat prosecutions, the answer to such fears is not to discard our traditional approach to state-of-mind requirements in criminal law. Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were ‘true threats’ unprotected by the First Amendment, I would affirm the judgment below.”

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