On June 1, 2015, the Supreme Court of the United States rendered an 8-1 opinion in Elonis v. United States overturning the Third Circuit's verdict finding Douglas Elonis ("Elonis"), aka "Tone Dougie," a self-proclaimed Facebook rapper, guilty of a federal statute criminalizing interstate threats, in this case, threats transmitted online through social media. The Supreme Court ruled that the jury instructions regarding the mental state required to find someone guilty under the statute were improper. In cases involving threats to a person, it is not the target's perception of the threat that matters; keeping with traditional criminal law principals, the person who made the threats must have had the requisite intent to threaten. The Court found that mere negligence, or that the speaker should have known that the words would be perceived as a credible threat, is not enough to convict someone under the statute. However, as Justice Thomas points out in the dissent, the Court declined to answer affirmatively what mental state would be sufficient for a conviction. Instead, the Court simply stated that negligence would not be enough, and remanded the case to the Circuit Court for a determination as to whether recklessness, knowing that the words would likely be taken as a threat and sending or speaking them anyways, would be more appropriate.
This case arose following a number of Facebook posts Elonis made, which he claimed were simply artistic expressions and a way to vent, both of which would be protected under the 1st Amendment right to free speech. The relevant posts ranged from verging on defamatory and offensive to outright brutal and violent. The targets of the posts were Elonis' ex-wife, co-workers, the local police department, and the FBI agents who contacted Elonis while investigating the menacing posts. Elonis claimed that he went to great lengths to state that these posts were merely expressive, and that his "lyrics" were styled after similar work by the famous rapper Eminem. However, the content of the posts were so graphic and vulgar that others took them as credible threats. His ex-wife filed for, and was granted a protective order against Elonis. Elonis was also fired from his job after his supervisor saw posts about other co-workers.
Elonis was charged with five counts of violating 18 U.S.C. §875(C), which makes it a federal offense to transmit in interstate commerce "any communications containing any threat... to injure another person." Elonis argued that the government was required to prove that he had intended to communicate a "true threat," while the prosecution argued that they were only required to show that Elonis intended to physically send the communications and that a reasonable person would have understood and viewed the words as a threat. Ultimately, the Circuit Court agreed with the prosecution and found that so long as a reasonable person would have believed it was a credible threat, then Elonis could be found guilty.
The Supreme Court's ruling that mere negligent transmission of communications that could be viewed as threatening is insufficient for conviction can be viewed as a small victory for free speech under the First Amendment; however, the decision has left the door open for the Circuit Courts to determine the appropriate mental state required to prosecute online threats. For Facebook and other social media posters, the right to post freely remains cloudy. There remains a tenuous line between venting and the occasional online rant in contrast to any credible threats that could be prosecutable.
So how does that apply to employers? Attorneys, employers, and even parents should preach caution when engaging in social media posting, and individuals should remain cautious when posting any material, which could potentially be viewed as inflammatory or rise to the level of menacing. However, employers must be careful in issuing discipline for online threats. The Supreme Court's decision may have opened an avenue for persons charged with making online threats to defend themselves. On the employment-side, that may give employees an argument against discipline, depending on the nature of the online comment, On the criminal side, however, that does not change the fact that those persons may still be subjected to extended court battles, expenses, and possibly jail time if others feel threatened by what is said online.
As the courts work out these issues and as more of these cases are adjudicated, a clearer picture of the law surrounding online posts should come into view. For the time being, traditional mental state requirements relating to intent in crimes involving threats and menacing hold true in cyber space as much as they do in the real world.
If you have any questions concerning Elonis v. United States, or would like a copy of the Court's opinion or have any question with respect to online issues, e-commerce, or cyber risks, please contact a member of our Intellectual Property/E-Commerce and Cyber Risk Practice Group.
This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.
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