Should someone be convicted of a crime for convicted for publishing a series of Facebook posts (like soon after being fired the person posts a photograph of himself with a toy knife against his coworker’s throat with the caption “I wish”) describing committing acts of violence towards various people? What if the person just quotes lyrics from a song which are violent? Or would it be different if the person made-up a comedy sketch about killing his ex wife on Facebook?
Are the words themselves enough without any subjective intent to do real harm? The government cannot regulate expression it merely finds “disagreeable.” Accordingly, does not the First Amendment require intent before the government can impose criminal liability for that speech. The US Supreme Court declared the “impermissibility of allowing liability for speech without proof of wrongful intent” in Virginia v. Black. Thus, subjective intent is constitutionally required to differentiate “constitutionally proscribable intimidation from protected core political speech.”
Would such a conviction violate the First Amendment by creating a chilling effect on political or controversial speech because people will “self-censor” to avoid criminal liability for making threats. In particular such a chilling effect would especially impact minority viewpoints because unpopular or negative opinions are more likely to be misunderstood or considered threatening by a jury. Is this fear especially true in the Internet age where there are difficulties discerning the tone or context of a message causing more misunderstandings and accidental threats. Likewise what about artistic expression, and in particular, on the genre of rap music. It is clear that hip-hop culture is misunderstood in much of American society as celebrating violence rather than seen as a legitimate form of political and artistic expression.
In other words, must courts give First Amendment freedoms “breathing space” from government regulation, even by criminal prosecution.
These are the questions were reviewed in Elonis v. United States, 575 U.S. ___ (2015) by the US Supreme Court on appeal from the Third Circuit. The critical issue was whether conviction of threatening another person over interstate lines (under 18 U.S.C. § 875(c)) requires proof of subjective intent to threaten, or whether it is enough to show that a “reasonable person” would regard the statement as threatening when posted on posted to Facebook under a pseudonym. The majority opinion, written by Roberts, ruled that mens rea was required to prove the commission of a crime under §875(c). The opinion drew on many Supreme Court cases where it had been held, in criminal law, that mens rea was required, though not mentioned explicitly in statute. Elonis held the law requires proof of the defendant's intent to threaten, not negligence or a reasonable listener test.
Elonis brought directly into play the question of the true threat doctrine stated in Watts v. United States, 394 U.S. 705 (1969) (per curiam). The case presented the Court with the opportunity to determine whether social media and other 21st Century methods of communication require a reevaluation of Watts and Virginia v. Black, 538 U.S. 343 (2003), and able to distinguish threats from constitutionally protected speech. 394 U.S. at 707.
At one end of the spectrum is Cindy Southworth, a vice president of the National Network to End Domestic Violence, who points out that when a relationship goes bad, threats become both a tool of manipulation and a reliable predictor of physical assault. ‘'Every abuser says, ‘I didn’t mean for her to think I would kill her,' '’ Southworth says. However, the First Amendment has given great breathing room to the use of words. After all, one person’s threat is another person’s lyric. See, Cohen v. California, 403 U.S. 15, 25 (1971) As the A.C.L.U. explained in the Elonis case. ‘'Words are slippery things, and one person’s opprobrium may be another’s threat.'’ ‘'The age-old principle is that we don’t criminalize speech without that clear intent,'’ said Lee Rowland, an A.C.L.U. staff attorney.
It is easy to understand how the First Amendment applies to political words, but what social discussion or even public jokes? Recall comedian Daniel Tosh was interrupted by a female audience member who loudly objected to his joke about rape, he responded by asking “Wouldn’t it be funny if that girl got raped by, like, five guys right now? Like right now?” The crowd erupted with laughter, but the woman was so overcome with concern for her personal safety that she left the show, later describing the experience as “viscerally terrifying and threatening.” Daniel Tosh Apologizes For Rape Joke Aimed At Female Audience Member At Laugh Factory, and Toe-to-Toe at the Edge of the Comedy Club Stage Is such language deserving of First Amendment protection? What about the common feature of the rapidly growing online gaming community where players take particular delight in taunting with explicit speech an opposing player before they disembowel, rather graphically, the other player? See, The Selective Subculture Of 'Fantasy' Gamers. On the internet, should your message be censored because someone may subjectively find your message threatening? See, Watson v. Memphis,373 U.S. 526, 535 (1963) (“constitutional rights may not be denied simply because of hostility to their assertion or exercise.”)
Based on Elonis, it would seem that for any of the cases to be criminally prosecuted there would have to be proof of the defendant's intent to threaten