New Online True Threats Case from the Third Circuit

The case is United States v. Elonis, and the opinion is available here.  The opinion affirms Anthony Elonis' conviction under 18 U.S.C. § 875(c) making it a crime to "transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another"

The First Amendment issue is the same as the one in Jeffries v. United States, a case I posted about here: whether prosecution for true threats requires proof of the defendant's subjective intent to threaten the victim.  The Third Circuit followed the lead of the vast majority of circuits that have addressed the issue and held that no proof of subjective intent is required.

Elonis' argument was similar to that advanced by the defendant in Jeffries.  Elonis cited Virginia v. Black 538 U.S. 343 (2003) - the most relevant Supreme Court case on the issue - and pointed out that in this opinion, the Supreme Court stated that:

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals (emphasis added)

Elonis argued that the Supreme Court's inclusion of the "means to" language indicated an intent to only include statements that speakers intended to be threats.  The Third Circuit disagreed:

we read “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence” to mean that the speaker must intend to make the communication. It would require adding language the Court did not write to read the passage as “statements where the speaker means to communicate [and intends the statement to be understood as] a serious expression of an intent to commit an act of unlawful violence.” This is not what the Court wrote, and it is inconsistent with the logic animating the true threats exception. (citations omitted)

The court then points out that the lower First Amendment protection for true threats is based on the harm that these threats cause and that:

Limiting the definition of true threats to only those statements where the speaker subjectively intended to threaten would fail to protect individuals from “the fear of violence” and the “disruption that fear engenders,” because it would protect speech that a reasonable speaker would understand to be threatening.

As I mentioned in my post on Jeffries I think that this approach is correct, especially in the online context where individuals may claim that they did not intend their statements to be threats because it is normal to say all sorts of strange things online.  Requiring subjective intent will make it easier to avoid prosecution for statements that cause real harm.

Lastly, this case is bad news for Jeffries, who is trying to get the United States Supreme Court to hear his case.  With the Third Circuit joining the vast majority of circuits that have addressed this issue (and with the only circuit reaching a different conclusion being the Ninth Circuit), the circuit split that Jeffries is trying to emphasize is now even shallower after Elonis.

(H/T: Howard Bashman at How Appealing)