When Anthony Elonis’s wife of nearly seven years left him, taking their two young children with her, he responded by posting “crude, degrading, and violent material” about her, including explicit threats to kill her, on Facebook, causing her great distress. Elonis was indicted by a grand jury, tried, and convicted of making threats. In an eight to one opinion, Elonis v. United States, the Supreme Court reversed Elonis’s conviction on the ground that the jury was not instructed to consider whether he acted with an “intent to threaten.”
While the fact is not mentioned in the Court’s opinion, Elonis’s appeal was brought, briefed, and argued as a constitutional challenge to his conviction: Elonis asserted that his communications were protected by the First Amendment. Under the Supreme Court’s decision in Virginia v. Black, he contended, the First Amendment exempts from its protection only “true threats,” which require proof of “a subjective intent to threaten.” The Court of Appeals for the Third Circuit rejected this claim, holding that “a statement is a true threat when a reasonable speaker would foresee the statement would be interpreted as a threat” and that Black had not “invalidated the objective intent standard the majority of circuits applied to true threats.” The Supreme Court granted certiorari to answer this question but apparently saw the First Amendment issue as so serious that it decided to avoid the issue by reading the requirement of an “intent to threaten” into the federal criminal statute at issue.
The resulting decision, made on a basis not briefed or argued, is questionable in every respect. As a practical matter, it converts 18 U.S.C. § 875(c) from a prohibition on threatening to a prohibition on intending to threaten, creating a distinction that many lower courts (and others) find difficult to believe or understand. It changes a “general intent” offense, requiring the government to show only intentional communication of a threat, to a “subjective intent” offense, requiring the government to also show an intent to threaten—to commit the offense. This subjective intent may not be inferred from the fact of the threatening communication. The decision radically complicates and weakens the law of threats, in the apparent absence of an excess of threat prosecutions or other need for change, by changing the inquiry from the “objective” issue of what a “reasonable person” thinks to the elusive issue of what the defendant thought. Perhaps even more important, it arguably adds an elusive subjective intent requirement to a wide variety of crimes.
As a matter of doctrine, the Court was also faced with the contrary decisions of at least nine of the courts of appeals, which it summarily disposed of by declaring them overruled. The Court’s principal (if not only) authority, incredibly enough, was a one-judge dubitante opinion that was clearly mistaken in basing its creation of a subjective intent requirement on a Supreme Court opinion that did not mention any such requirement. The Court’s other authorities did not clearly support, if they did not contradict, the Court’s holding, and the Court ignored or questionably distinguished decisions that seemed to contradict it.
