Government & Politics

Facebook Threats Face Off Against Free Speech

What constitutes protected speech? The Supreme Court didn't quite say.

John J. Bastiat · Jun. 5, 2015

Regarding the fundamental matter of free speech, the Supremes decided, well, nothing this week. Okay, that’s not quite true — but it’s close. First, some background: After his wife left him, Anthony Douglas Elonis started posting “graphically violent language and imagery concerning his wife, co-workers, a kindergar¬ten class, and state and federal law enforcement” on his Facebook page under the pseudonym “Tone Dougie.” Although the, um, “lyrics” (Elonis’ characterization) were footnoted with disclaimers they were “fictitious” and not intended to depict actual persons, the passages were very detailed and identified specific people and future violent acts against them, including Elonis’ wife and his former boss (who fired Elonis for threatening his coworkers). Free speech, or not?

In its 7-2 decision, the Supreme Court decided that, with respect to federal statutes governing the issue of threats made in interstate commerce (like those on Facebook), the standard for deciding when speech drops below the “free speech” threshold and becomes unprotected speech — that is, speech unprotected by the Constitution under the First Amendment — requires a mental state (in legal terms, the mens rea — literally, “guilty mind”) of “something more” than “mere negligence.” The Court then punted the ball back to the lower courts for a read on what “more-than-negligence” means. We wish the lower courts luck. Meanwhile, in not deciding the root issue, SCOTUS has now placed portions of foundational jurisprudence on criminal intent up for grabs. Nice work, Team SCOTUS!

For his part, Elonis argued that “proof of a defendant’s intent to put the recipient of a threat in fear is necessary for conviction.” The High Court rightfully rejected this argument — otherwise any defendant could prevail by merely asserting a lack of intent to threaten anyone. But the justices left pretty much nothing in its place, choosing instead to pass the buck to the lower courts to do the tough work of figuring out what standard ought to apply.

The lone voice of reason in this judicial wilderness was Justice Clarence Thomas. As an aside, we note in passing our surprise to see the likes of Justices Antonin Scalia and Samuel Alito joining in the majority opinion delivered by Chief Justice John Roberts. In any case, as Justice Thomas noted in his dissent, since when does a negligence-based rule apply as the required general criminal mental state? As he further notes, “This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent” (our emphasis).

As a general rule, the baseline mental state requirement for most crimes is “general intent,” which simply means the defendant intended to commit the act and understood that he/she was in fact doing just that; knowledge of whether the act would qualify as a “crime” under a particular statute is irrelevant to the question of committing the act itself.

In the case of a threat, Thomas noted, the mental state requirement is that Elonis understood the plain-English meaning of his words, nothing more, and that he conveyed those words on Facebook. As to whether those words constitute a threat, the Court views that question through the lens of an “ordinary, reasonable person”: If an ordinary, reasonable person would understand Elonis’ words to constitute a specific threat to a specific individual, then it’s a threat as far as the law is concerned and Elonis should be convicted — end of story. As Supreme Court Justice Oliver Wendell Holmes noted over a century ago, “The right to swing my fist ends where the other man’s nose begins.” In this case, Elonis’ right to say whatever he wishes is not absolute: Just as a person has no free speech “right” to yell “Fire!” in a crowded theater, “Tone Dougie” has no right to threaten others on Facebook — independent of the supposed “artistic” content of his violent lyrics.

Cases like these always leave defenders of Liberty a little skittish, of course, because we realize the delicate balance between individual liberty and individual responsibility can be upset by a single ruling. Here, a sloppy scrapping of over a century of jurisprudence will leave in its wake a sea of questions to be resolved. Our best hope to avoid such decisions in the future rests with the next U.S. president, who hopefully will have the foresight and courage to put more justices like Clarence Thomas on the bench. In any case, a Court of clear-thinking justices would certainly avoid decisions like this one, in which the Supremes not only reached the wrong result — Elonis may or may not be guilty, as far as SCOTUS is concerned — but used flawed logic to get to it in the first place.

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