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.
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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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