When Is a Threat Real?


The Supreme Court has just rendered yet another odd decision, even in the views of legal scholars. They reversed the conviction of Anthony Elonis for making lethal threats against his wife, co-workers, a kindergarten class, and federal enforcement officials. These weren’t obscure or minor threats. He wrote quite specific threats on Facebook to slice his wife into little bits and to attack nearby schools. And the decision was 8:1, with only Justice Thomas dissenting in full.

Most casual readers of this result were shocked and dismayed. Meanwhile legal experts saw real world consequences coming that undermine respect for the law and increase the risk of actual harm. Yet, surprisingly, the decision isn’t quite what it seems at first glance, and the majority opinion written by Chief Justice Roberts is thoroughly researched and well-reasoned.

The actual issue before the court came down to a jury instruction. Elonis wanted one which asserted that the government must show that a true threat was intended. The trial judge refused and actually applied the standard used in civil matters, i.e. that a reasonable person would feel that he intended to communicate a real threat.

The court decided that this was an error based on a general principle in criminal law that wrongdoing must be conscious to the criminal. Roberts went on to note the usual fact that this doesn’t mean that Elonis must know that he is committing a crime, only that he has the intent to do something which is in fact criminal.

Several justices acknowledged that this decision, while consistent with precedent and the specific provision of the law being charged, is confusing and provides inadequate guidance for future cases. Exactly how the government should prove beyond a reasonable doubt what is in the mind of the defendant is not explained. I am guessing that this might entail proving some relevant preparatory actions like surveillance, acquisition of a weapon, preparation for escape, etc. But who really knows? If I recite a limerick in an airport about blowing up planes, do I mean a real threat, or do I actually have to be carrying a bomb? I don’t plan to test this, but I wouldn’t be surprised if someone did.

Justice Alioto wrote a separate opinion, dissenting in part. Both Alioto and sole dissenter, Justice Thomas, saw the fatal flaw. It is the job of the court to make as clear as possible what is against the law and this judgment clearly fails that simple test.

Of course, this decision doesn’t free Elonis. The case is remanded back to the trial court where the precise difficulty I mention will become the centerpiece of a new trial, unless there is a settlement. So perhaps we shall see how such a proof is accomplished, or not as the case may be.