Online Threats and the First Amendment

Wired reports about a petition for certiorari currently pending before the Supreme Court.  The case is Jeffries v. United States.  Here is Jeffries' petition for certiorari and here is the government's brief in opposition.  The Sixth Circuit's opinion is here.  The question presented, as framed by Jeffries is:

Whether, in light of the plain meaning of “threat” and the constitutional rule of Virginia v. Black, 538 U.S. 343 (2003), conviction under Section 875(c) requires proof of a subjective or specific intent to threaten.

Jeffries posted a video online of him playing the guitar and singing about killing the judge and other people involved in a ten-year custody dispute with his ex-wife.  Jeffries posted this video on Youtube but made sure to be diligent about spreading his message.  According to the government's brief:

Petitioner posted a link to the video on his Facebook wall and sent links to 29 Facebook users, including a Tennessee State representative, a television news station, and an organization devoted to empowering divorced fathers as equal partners in parenting.

The issue that Jeffries raises is certainly an interesting one from a First Amendment perspective.  Commentators have puzzled about the issue, with one of the most recent examples I've seen being Leslie Kendrick's article.  (Full Citation: Leslie Kendrick, Speech, Intent, and the Chilling Effect, 54 William & Mary L. Rev. 1633 (2013).  Orin Kerr also blogged about the case when the Sixth Circuit decided it, noting Judge Sutton's reservations about how common interpretations of the statute (18 U.S.C. §875(c)) essentially disregard whether intent is required for a conviction.

I think that the circuit split on this issue is far less significant than Jeffries makes it out to be, and the Sixth Circuit's opinion is in line with the prevailing approach of the circuits that have dealt with the issue.  Accordingly, I think that it is unlikely that the Supreme Court will grant this petition.

I think that Jeffries' attorney's statements in defense of his client point out why an intent requirement may be a bad way to construe the threat statute.  Wired reports:

“We think its potentially quite a significant case. People say things in the online world that they don’t mean seriously,” said the veteran’s [Jeffries'] attorney, Chris Rothfeld. “Second, it’s difficult to tell in the online world how a statement is intended. People say things and write things and they are read in an entirely different context.”

This statement shows why an intent requirement would make it a lot easier to harass people online.  Defendants who explicitly threaten the well-being of others could claim that they were not being serious.  While laws that criminalize online harassment are often poorly drafted and overbroad (see e.g., this), there should still be room to prosecute those who threaten to cause serious harm to others.

And if the internet makes a difference, this difference is accounted for by the current interpretation of the statute. Jeffries' attorney notes that statements online are "read in an entirely different context."  To be convicted under the statute in this case, the defendant's threats must be such that a reasonable person would "take the statement as a serious expression of an intention to commit bodily harm."  The statute is further limited by requiring that the threat be made to achieve some goal through intimidation.

Statements made on the internet can cause real harm and adequately narrow statutes that allow for the prosecution of these statements are crucial for combating this harm.  18 U.S.C. §875 is one such statute, and requiring proof of intent in these cases would hinder the legitimate prosecution of true threats.