True Threats and the First Amendment: Objective vs. Subjective Standards of Intent to Be Revisited in Elonis v. United States

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review

Last month, the Supreme Court heard oral arguments in an appeal of the Third Circuit’s decision in United States v. Elonis.[1] Anthony D. Elonis was convicted under 18 U.S.C. § 875(c), a federal statute that prohibits making “any threat to injure the person of another” via the internet.[2] Elonis does not dispute that he posted Facebook status messages regarding his desire to kill his wife, detonate bombs in the presence of law enforcement, and shoot up a local elementary school (among other threats).[3] Rather, he disputes that these were intended as threats, stating that he was merely “expressing frustration.”[4] At trial, the jury was instructed to apply an objective standard and construe the threats as they would be perceived by a “reasonable person,” not according to the standard requested by Elonis, which would have asked the jurors to look at the subjective intent of the speaker.[5] After the Third Circuit affirmed Elonis’ conviction, the Supreme Court granted certiorari on the issue of whether an objective or subjective standard is required by the statute under which Elonis was charged and, if the former, whether such a standard is constitutionally permissible as part of any “true threat” statute that regulates pure speech.[6]

In being asked to clarify this matter, the Court has an opportunity to extend protection for victims of stalking, harassment, and violence often associated with these crimes by permitting the objective standard of intent applied by the Third Circuit. Alternatively, if the Court finds that the First Amendment requires a subjective intent standard with respect to these laws, this ruling could further insulate the perpetrators of such crimes from prosecution by making conviction more difficult than the actual statute and principles of justice require. These divergent possibilities have garnered the attention of free speech activists and victims’ rights advocates alike, both of whom are concerned by a potential change in the law. But their concerns are likely unnecessary. Although it is possible that the Court will dramatically change the way lower courts review “true threat” statutes, it is more likely that the standard will stay exactly the same.

A Brief History of “True Threat” Jurisprudence

Although free speech rights have long enjoyed protection in the judicial system, this protection has never been without limits. The Supreme Court has made clear that “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”[7] Courts have permitted the restriction of obscenity,[8] profanity,[9] libelous and defamatory speech,[10] and “fighting words,” defined as words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”[11] Threats made toward another person have historically fallen within this category.[12] Additionally, the standard for determining the requisite intent to convict individuals under “true threat” statutes has been consistent throughout the Court’s recent history.

Since early “fighting words” cases like Chaplinsky v. New Hampshire, the Court has permitted the use of an objective standard for determining a speaker’s intent rather than a subjective standard.[13] Where a statute sets forth this type of objective standard, the government need not prove that the speaker intended to threaten, but rather that a reasonable person would have perceived the words as a threat.[14] Taking into account the difficulty of proving what an individual intended when making a verbal threat and erring on the side of victim protection, courts have continually accepted statutes that require only objective intent to support a conviction. This standard has been endorsed by the Supreme Court, with lower courts following suit.[15] Despite this consistent history, some claim that a recent Supreme Court case, Virginia v. Black,[16] has shifted the tides of the debate over objective versus subjective intent standards.

How Virginia v. Black Changed the Landscape (or Did It?)

At issue in Virginia v. Black was a Virginia state statute that made it a felony “to burn, or cause to be burned, a cross on the property of another, a highway or other public place.”[17] The statute specified that an individual could only be convicted if this act was carried out “with the intent of intimidating any person or group of persons,” but that “[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate.”[18] Multiple individuals had been convicted in separate trials under this statute after unrelated cross burning incidents: one in a private lot during a Ku Klux Klan rally, but visible from a state highway; the other on the lawn of an African-American family who previously had a dispute with the accused.[19] At these two trials, the juries were instructed on the subjective intent standard as well as the prima facie intent provision of the statute, and both defendants were convicted.[20] On appeal, the Virginia State Supreme Court consolidated these cases and reversed the convictions, ruling that the statute was a violation of First Amendment rights and unconstitutionally overbroad as a result of the prima facie intent standard.[21] The United States Supreme Court issued a split decision. It reversed the Virginia Supreme Court on the conviction of the individuals who burned a cross in the yard of a neighbor, holding that the intent to threaten was clearly present there. However, the state court’s decision to overturn the conviction of the Ku Klux Klan cross-burners was affirmed.[22] The Court determined that the broader purpose of statute—prohibiting cross burning—was permissible within the confines of the First Amendment,[23] but that it was otherwise unconstitutional.

From there, much about the Court’s ruling in Black is woefully unclear. The opinion as a whole is fragmented and muddled. The disjointed plurality was able to agree on a ruling in regard to these particular individuals that the statute was unconstitutional, but agreed very little on why or how this ruling would apply in future cases.[24] Four justices agreed that the statute was only unconstitutional because of the prima facie intent-to-threaten provision,[25] and three stated that it would be unconstitutional even without that particular provision due to other First Amendment concerns.[26] As a result, the lower courts’ application of this precedent has led to some conflict between circuits, within circuits, and across state and federal lines.

For Many Courts, the Objective Standard Continues to Control

In light of Black, most courts have not actually adjusted their approach to “true threat” regulations and statutes.[27] Rather, many have construed Black to apply only to laws similar to the Virginia cross burning statute, in which a prima facie standard indicates intent even without other evidence of the accused’s mindset at the time of the act.[28] In fact, nine federal circuits and seventeen state supreme courts have continued to apply an objective standard after the ruling in Black.[29] And this aftermath is not hard to believe after reading Black. A decision so fraught with conflicting application of the law and supported by little agreement between the justices is not easy for lower courts to follow. Furthermore, many argue that the subjective standard negates the intended purpose of statutes that attempt to regulate threatening behavior.[30] Where the government must prove the accused’s mindset at the time of the act, it is difficult—if not impossible—for victims to obtain protection from the justice system when they feel threatened.[31] This is especially troubling where these threats are made against victims of domestic violence, who often face major hurdles with law enforcement when attempting to break away from their abusers.[32] In light of all of these considerations, the majority of courts have not changed their approach to “true threat” statutes following Black. However, not every court saw Black the same way.

Outliers Create a “Shallow” Circuit Split

 A small group of courts (i.e., the Ninth Circuit and the high courts of Massachusetts, Rhode Island, and Vermont) have broken off from the herd and have begun applying Black in a different way than most courts.[33] Also, there are currently eight states whose highest courts use a different standard than their related federal circuits. As a result, defendants in the same geographic area may receive different treatment under the law depending on whether prosecutors bring charges in federal or state court.[34] This, of course, is cause for some concern, but is not so completely outside the norm as to require review by the Supreme Court.[35] Elonis argued that these outliers have created enough of a split for the Court to review. But Elonis would be advised not to take this grant of certiorari as a sign of agreement with his argument. In fact, this grant may signify just the opposite.

How Elonis v. United States Will Shed New Light on the Conflict

Although the Supreme Court has agreed to review Elonis’ case, it did not do so without condition. In fact, in its order granting certiorari, the Court instructed the parties to brief an issue outside the scope of their initial briefs—the issue of whether 18 U.S.C. § 875(c) requires the application of an objective or subjective intent standard “as a matter of statutory interpretation.”[36] At oral argument, this issue of statutory interpretation in regards to intent to threaten was a central focus of the justices’ questions. Although the Court’s reasoning can be unpredictable, this focus may be indicative of what issues will be central to the final decision. Furthermore, when considering the way in which the majority of lower courts have interpreted the Black ruling, it may very well be that the Court’s decision in Elonis will turn on whether, as in Black, the specific statute at hand requires an objective or subjective standard of intent. If the Court determines that no subjective intent is required by the statute, Black would likely lead the Court to uphold Elonis’ conviction.[37] But this is mere conjecture. No matter what the outcome of the case, it is likely that, as social media and other easily accessible modes of communication become increasingly ubiquitous, charges brought under 18 U.S.C. § 875(c) and similar statutes will continue to increase.[38] Thus, clarification of Black via Elonis could impact not only the standard of intent required to convict under this particular statute, but also the ability of legislatures to enact other statutes like it, as well as the way courts throughout the nation approach all “true threat” statutes.


The Supreme Court has an opportunity to clarify ambiguities left behind by the confusing plurality opinion in Black and to settle the conflict between circuits over how to apply Black’s holding. Although it is genuinely unclear how the Court will rule on this issue, in the interest of the protection of victims of stalking, harassment, domestic violence, and other similarly disturbing crimes, the Court should affirm the Third Circuit’s decision. If the Court rules otherwise and sets forth a standard that requires proof of the accused’s subjective intent to threaten, this ruling has the potential to further reduce the likelihood of convictions for threatening speech, leaving victims little recourse under the law. Such a subjective standard would be “dangerously underinclusive” and undercut the purpose of federal and state statutes put in place to protect victims from these kinds of threats, which are often the first warning signs of impending direct acts of violence.[39] The protections provided by § 875(c) and statutes like it are an important element in the battle against violent crime and must be supported by a standard of intent that makes prosecution possible.


[1] Elonis v. United States Case Page, SCOTUSblog (Oct. 24, 2014, 9:28 PM),

[2] 18 U.S.C.S. § 875(c) (Lexis 2014).

[3] United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013), petition for cert. filed, Elonis v. United States, 2014 U.S. S. Ct. Briefs LEXIS 599 (Feb. 14, 2014) (No. 13-893), 6-14.

[4] Id. at 5.

[5] Id. at 2.

[6] Id.

[7] Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942).

[8] United States v. O’Brien, 391 U.S. 367 (1968).

[9] Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986).

[10] Gertz v. Robert Welch, 418 U.S. 323, 345-346 (1974) (establishing states’ authority to enforce a legal remedy for defamation perpetrated against a private individual).

[11] Chaplinsky, 315 U.S. at 572.

[12] Watts v. United States, 394 U.S. 705 (1969); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); United States v. Jeffries, 692 F.3d 473 (6th Cir. 2012), cert. denied, 134 S. Ct. 59 (2013).

[13] 315 U.S. at 573 (quoting State v. Brown, 68 N.S. 200, 38A. 731). “The word ‘offensive’ is not to be defined in terms of what a particular addressee thinks . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.”

[14] “[I]f an individual makes a true threat to another, the government has the right, if not the duty, to ‘protect[] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur,’ all of which places the menacing words and symbols ‘outside the First Amendment.” Jeffries, 692 U.S. at 478 (quoting R.A.V., 505 U.S. at 388, brackets in original).

[15] See infra for a discussion of the objective standard in modern times and specific case law on this standard.

[16] 538 U.S. 343 (2003).

[17] Id. at 348.

[18] Id.

[19] Id. at 348-349.

[20] Id. at 349.

[21] Id. at 350.

[22] Id.

[23] Id. at 363, “The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning’s long and pernicious history as a signal of impending violence. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with the intent to intimidate is . . . proscribable under the First Amendment.” (O’Connor, J. writing for the plurality, joined by Rehnquist, C.J. and Stevens, Scalia, and Breyer, JJ.).

[24] Id.

[25] Chief Justice Rehnquist, along with Justices Stevens and Breyer in an opinion written by Justice O’Connor.

[26] Justices Souter, Kennedy, and Ginsburg adopted this position.

[27] Petition for Writ of Certiorari, supra note 3, at 19. “Many courts applying an objective standard have adopted (or reaffirmed) the rule post-Black. These courts have recognized Black’s relevance but have ultimately rejected—or simply ignored—its applicability. Some have construed Black narrowly as having overturned the Virginia statute for overbreadth because the statute classified public cross burning as prima facie evidence of an intent to intimidate when it was sometimes protected speech. E.g. [United States v.] Martinez, 736 F.3d [981 (11th Cir. 2013),] 986-987 (‘Black was primarily a case about the overbreadth of a specific statute—not whether all threats are determined by a subjective or objective analysis in the abstract.’)”

[28] Id. at 20.

[29] Id. at 17-18.

[30] Brief for National Center for Victims of Crime as Amicus Curiae Supporting Respondents, Elonis v. United States, 2014 U.S. S. Ct. Briefs LEXIS 3378, at *18 (Sept. 22, 2014) (No. 13-893). “The practical impact of a subjective intent standard will not be to protect speech, but to protect threats.”

[31] Id. at *15. “The subjective intent standard makes it difficult to prosecute offenders because some stalkers operate without the specific intent to cause the victim fear. A stalker will maintain a strong, irrational belief that the victim will return his feelings of affection if he is persistent enough…[This] also makes it difficult to enforce laws prohibiting stalking because many stalkers are skilled manipulators.” (internal quotations and citations omitted).

[32] Brief for The National Network to End Domestic Violence, et al. as Amicus Curiae Supporting Respondents, Elonis v. United States, 2014 U.S. S. Ct. Briefs LEXIS 3482, at *7 (Oct. 6, 2014) (No. 13-893). “[I]nterpreting Section 875(c) to require proof of a subjective intent to threaten will make it more difficult to protect victims of abuse from threats of violence made by their current and former intimate partners, who increasingly use easily accessible but sophisticated technology to track their victims and to threaten them wherever they are, even after they manage to escape their abusers, and from the crippling fear and disruption such threats cause.”

[33] Petition for Writ of Certiorari, supra note 3, at 20.

[34] Id. at 23.

[35] John C. Neiman, Jr., How to Get Your Case to the Supreme Court–Or, in the Alternative, How to Keep It From Getting There, 43 The Brief 32 (2013). “If the [circuit] split is shallow, the Court may believe that allowing the issue to bounce around a little longer may help clarify the practical stakes and pertinent legal arguments.”

[36] Elonis v. United States, No. 13-893, 2014 U.S. LEXIS 4183, at *1 (U.S. 2014) (granting writ of certiorari).

[37] Many lower courts have interpreted Black to only apply to statutes similar to the Virginia cross burning statute, with a prima facie evidence of intent implied by the specific manner of expression.

[38] For a discussion of federal and state laws covering threats and harassment via the internet including 18 USCS § 875(c), see Aimee Fukuchi, A Balance of Convenience: the Use of Burden-Shifting Devices in Criminal Cyberharassment Law, 52 B.C. L. Rev 289 (2011).

[39] Brief for The National Network to End Domestic Violence, supra note 34, at *28.

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