Saturday, July 4, 2015

On whose side is the US Supreme Court—Facebook threatener or threatenee?

Whenever I am asked if I have a Facebook account, I answer that I have but do not post anything because my face might scare people.

From whose perspective should a Facebook posting be viewed—the threatener or threatenee? Should liability turn on whether a “reasonable person” who saw the posting regards the communication as a threat or what the defendant who made the posting thinks?

Facebook user A.E., after his wife left him, posted self-styled rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, a kindergar­ten class, and law enforcement officers. He claimed they were for “therapeutic” purposes “to deal with the pain”. The posts contained disclaimers—that the lyrics were “fictitious” and not intended to depict real persons, and that A.E. was exercising his First Amendment rights. A.E. posted a photograph of himself and a co-worker at a Halloween event showing him holding a toy knife against his co-worker’s neck. His posts were seen as threatening by his employer, co-workers, and his wife. He was fired. His employer informed the Federal Bureau of Investigation which began monitoring A.E.’s Facebook activity. A grand jury charged A.E. with five counts of violating 18 U. S. C. §875(c) making it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”

A.E. re­quested a jury instruction that the Government must prove that he intended to communicate a “true threat.” But the District Court instructed the jury that A.E. could be found guilty if “a reasonable person would foresee that the statement would be interpreted… as a serious expression of an intention to inflict bodily injury or take the life of an individual.” A.E. was convicted on four of the five counts. The Third Circuit of Appeals affirmed, holding that the intent required by Section 875(c) is “only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat.”

The Supreme Court, 7-2, reversed, holding that the fact that Section 875(c) does not specify any required mental state does not mean that none exists. The “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” The basic principle is that “wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. The “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” Thus, criminal statutes are generally interpreted “to include broadly applicable scienter requirements, even where the statute . . . does not contain them.” This does not mean that a defendant must know that his conduct is illegal, but a defendant must have knowledge of “the facts that make his conduct fit the definition of the offense.”

When interpreting federal criminal statutes that are silent on the required mental state, the Court reads into the stat­ute “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.’”  Communicating some­thing is not what makes the conduct “wrongful.” Here “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. A.E.’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. 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.” A negligence standard was not intended in criminal statutes. Under these princi­ples, “what [the defendant] thinks” does matter. Elonis v. United States, No. 13–983, 06/01/2015.

OBSERVATION: Justice Alito criticized the ruling, saying that the majority did not “explain what type of intent was neces­sary.” Did the jury need to find that the defendant had the pur­pose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would reckless­ness suffice?  He said that a defendant may be convicted under §875(c) if he or she consciously disregards the risk that the communication transmitted will be inter­preted as a true threat. Justice Thomas also dissented, saying he would have convicted the defendant because the Court of Appeals properly applied the general-intent standard, and the communications transmitted by the defendant were “true threats” unprotected by the First Amendment.


Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 900 Fort Street, Suite 1110, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Websites:  www.MilitaryandCriminalLaw.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication. No attorney-client relationship is established between the writer and readers relying upon and/or acting pursuant to the contents of this article.)

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