On the first Monday of December, the Supreme Court of the United States heard oral arguments in Elonis vs. United States, in which the Court took up the issue of what intent should be required for a person to be convicted under 18 U.S.C. § 875(c) which makes “communication containing any threat to kidnap…or…injure [another person]” a federal crime punishable by a fine and up to 5 years of imprisonment.
Anyone who has spent any time on the Internet knows that threats and harassment are a common, if ugly, occurrence (see, for example, gamergate). What you might not know is that a person who posts such threats can serve actual jail time, which is why Anthony Elonis — the Petitioner in the case at issue — is currently serving time. There are plenty of other articles analyzing the facts in Elonis vs. United States; what we’re going to address here is how this case may affect blog posts.
The case turns on whether the intent of Elonis should have been taken into consideration by the jury when determining whether he committed a crime under 18 U.S.C. § 875(c). I’ll admit that criminal law is outside of my area of expertise, so I asked Joe Gonyea, a criminal law expert based in Houston, to comment on why intent is so important in criminal law matters:
“Our actions by themselves rarely constitute criminal offenses. Most crimes also require the government to prove that we acted with an unlawful state of mind, otherwise known as our intent. This is important because it means that actions that seem innocent, like writing song lyrics, can become criminal when done with an unlawful state of mind (i.e., an intent to communicate a threat).
Alternatively, actions that seem criminal, like taking someone else’s property, can be innocent when done without an unlawful state of mind (i.e., mistakenly picking up someone else’s book bag instead of your own).”
Let’s take a look at a hypothetical scenario. Suppose that a blogger publishes a post about Sony Pictures’ decision to not release the controversial movie “The Interview” and the post includes the following statement:
“The idea to give in to terroristic threats and not release “The Interview” is incredibly stupid. The next time I see Sony CEO Kazuo Hirai walking down the street I’m going to lean out of my car window and hit him in the back of the head with a sock full of quarters to knock some sense into him.”
If the Court sides with the government, then the only thing that would need to be proven in order for the blogger to be convicted of a crime is that a reasonable person, when looking at this exchange, believed that a threat was conveyed.
That is, the fact that this was intended to be a joke would not be taken into consideration. (It’s worth noting that the “reasonable person” test is a commonly-used legal standard.)
If, however, the Court sides with Elonis, then the prosecution would need to prove that the blogger intended for the statement to be a threat of actual harm, which would require the jury to make a fact-specific determination on the state of mind of the commenter at the time they made such a post. Here’s Joe again on the relative difference between the standards:
“The terms ‘subjective’ and ‘objective’ in this context refer to the kinds of evidence required to obtain a conviction. In short, it’s the question of whether the evidence should focus on the speaker of a message rather than on the recipient. If the Court sides with Elonis, then the government will have to produce evidence sufficient to undermine a speaker’s explanations of his or her message.
This could take the form of extraneous threatening statements, or it could also be inferred from his or her actions (i.e., purchasing weapons, etc.). If that evidence doesn’t exist, as is usually the case in the context of internet vitriol, a conviction would be very unlikely. However, if the Court disagrees with Elonis, then prosecuting internet communication would be relatively easy because the government could simply rely on the shocking nature of the comment and on the sensibilities of the jury.”
As you can see from Joe’s explanation, in the case of our hypothetical there is a possibility that a reasonable person could determine that a threat was conveyed. If, however, the intent of the blogger is taken into consideration, then there is very little chance that a conviction will occur. In fact it is likely that no charges would be levied in the first place.
So what’s next?
While there are some prosecutions under 18 U.S.C. § 875(c), the government isn’t exactly locking people up left and right and if the Court sides with Elonis you can expect this to continue to be the norm. However, if the Court aligns with the government then it will put a heavy hammer in the hands of those people that believe that they have been threatened.
The Court doesn’t immediately issue opinions after hearing oral arguments and we shouldn’t expect an outcome in this case until the beginning of Summer 2015. We’ll revisit this when the Court issues that opinion and talk about the practical implications in part two of this post.
Kirk Larson is WP Engine’s first attorney and serves as its In-House Counsel. While he does handle all types of legal work at WP Engine, his passions are privacy, data security, and maintaining a free and open internet. If you’re ever around downtown Austin in the early morning you’ll likely see Kirk running around the trails and roads.