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.

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Free Speech in the Age of Terrorism & Mehanna v. United States: SCOTUS Passes Up an Opportunity to Clean Up an Old Mess

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

In the order following the Supreme Court’s September conference, the Court declined to hear a case that would have clarified §§ 2339A and B of Title 18 of the U.S. Code and prevented unlawful encroachment on free speech rights. Tarek Mehanna, convicted of providing “material support” to a foreign terrorist organization, asked the Court to clarify its interpretation of the statute under which he was prosecuted.[1] The standard used to support this conviction, established in Holder v. Humanitarian Law Project, requires action “in coordination with, or at the direction of” the terrorist organization in question.[2] Because HLP did not adequately explain this standard, the government has been able to convict defendants like Mehanna despite insufficient evidence to support the “coordination” requirement. Now, the Court has passed up an opportunity to correct this error by denying Mehanna’s petition for writ of certiorari, leaving his conviction in place, and effectively supporting an improper and ineffective standard. If the Supreme Court were to give courts and juries a more workable set of guidelines under which to establish “coordination,” they could more fairly decide these cases.

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