SCOTUS Muddies Water of Federal Threat Statute

Federal law makes it a criminal offense to transmit in interstate commerce "any communication containing any threat . . . to injure the person of another."

Anthony Elonis was an active user of Facebook. After his wife left him, Mr. Elonis began posting what he labeled as "rap lyrics" to his Facebook page. These posts contained graphically violent language and imagery. Based upon the nature of the posts, Mr. Elonis was indicted for threating his estranged wife, police officer, and the FBI, among others. He was subsequently convicted.

The issue on appeal turned on a jury instruction, which only required a reasonable person to view the communication as a threat, regardless of the defendant's intent. Stated otherwise, regardless of whether the Defendant intended the communication to be a threat or not, if a reasonable person viewed the communication as a threat, then the defendant can be convicted. The jury was essentially provided with a negligence instruction.

In reversing the conviction, the United States Supreme Court reasoned that 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." The Court differentiated the negligence standard, as applied in tort cases, to criminal intent in criminal cases.

On June 1, 2015, the Court held that mere negligence on behalf of a person communicating a threat is not enough for a conviction. The Court left unanswered, however, the mental state required for a conviction.

In a concurring opinion, Justice Alito proclaimed that "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 . . ."

Only time will tell what standard courts apply in the federal threat statute. We only know that it is not a negligence standard.