What We Learned From Elonis

The United States Supreme Court issues its long-awaited decision in Elonis v. United States. How cool is that?

Via Ken White at Popehat:

So what did the Supreme Court do?

Screw everything up.


The Supreme Court could have ruled on just Section 875(c) — it could have just said “this statute requires proof of subjective intent.” It could have gone further and ruled on the First Amendment, saying “the First Amendment requires subjective intent to prove a true threat” or that the First Amendment doesn’t require that.

Instead, seven justices ruled that Section 875(c) requires the government to prove something more than what it did, but not exactly what.

Via Venkat Balasubramani at Technology & Marking Law Blog:

The “reasonable person” standard is a familiar and well-worn one, but it’s insufficient because it’s a negligence standard, and criminal statutes are presumed to require a higher level of culpability than negligence. The government tried to inch its standard over the line, arguing that it was actually “something more” than negligence, but the Court rejects this view. The parties also argued about whether recklessness was sufficient, but the Court punts on this issue altogether.



Via Cristian Farias at New York Magazine:

The court noted that “wrongdoing must be conscious to be criminal” — that is, the government can’t just go after you because of how others feel about you. Indeed, people may very reasonably feel you said something really terrible to them, and may even sue you for causing them emotional distress. But under criminal law, their feelings, no matter how reasonable, are irrelevant [?]. Roberts put it this way: “The central thought is that a defendant must be blameworthy in mind before he can be found guilty.”

Via Eugene Volokh at Volokh Conspiracy:

We still don’t know, following Elonis, whether the “true threats” exception to the First Amendment (1) covers only statements said with the purpose of putting someone in fear, (2) applies also to statements said knowing that the target will be put in fear, (3) applies also to statements said knowing that there’s a serious risk that the target will be put in fear, or (4) covers all statements that a reasonable person would view as aimed at putting the target in fear. Indeed, as best I can tell, the Supreme Court did not resolve the federal circuit court disagreement on the First Amendment issue that helped persuade the Court to hear the case. And the statutory decision that the Court reached, while important for deciding how to instruct juries in federal threats case, is likely to practically affect the results in only a narrow range of cases.

Via Jay Michaelson at The Daily Beast:

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.

Plus cool graphic for those who find reading too much effort:

I have nothing further to add.


10 thoughts on “What We Learned From Elonis

  1. Marc R

    I was really disappointed reading the words themselves. It wasn’t particularly interesting and the threats were so vague…I think the dumbest argument was that somebody thought a gangster rapper talking about hypothetical school shootings is related to street cred. Was there a specific threat were an agency identified an actual scared “target.”

    How long until a budding Prince Hamlet is shot doing the To Be Or Not To Be speech by strictly prose reading officers executing a mental welfare check in the park?

  2. Wrongway

    shrodinger’s theory of the 1st amendment appears .. it’s there, but only if you observe it..

      1. Fubar

        Part of a chapter from my latest treatise “Quantum Mechanics for Lawyers with Calendar Conflicts, and Applications to Current Legal Issues”:

        Free speech, freedom’s great proposition,
        Might be speeding toward abolition.
        If it’s here, there’s no knowing
        How fast it is going.
        So says Schrödinger’s great admonition.

  3. Jordan Rushie

    I thought Alito absolutely hit the nail on the head –

    “The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.

    This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.”

    Basically, we learned nothing.

  4. Jason Truitt

    I would think that any criminal defense lawyer would love this decision. Every statute that requires the commission of a crime based on the viewpoint of a reasonable person is now vulnerable. We don’t know what is required, but at least the slope is finally slipping the other way for once.

    1. SHG Post author

      It’s a good statutory interpretation decision for CDLs, but rarely do these types of opinions translate to other laws as clearly and easily as one would think they should. With decent legislating, shouldn’t matter, as every crime should have a clear and sufficient mens rea or it shouldn’t be a crime.

      1. Jason Truitt

        I absolutely agree about proper legislating. But I’m from Texas. We don’t have that here.

        [Ed. Note: Off topic Texas-centric collateral discussion deleted, because this ain’t about Texas and it doesn’t become about Texas even if that’s what interests you.]

        Courts should do the same thing in “reasonable person” cases from now on, too.

  5. Pingback: un-Reason-able | Simple Justice

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