Fault Lines
21 October 2017

Sorry, SCOTUS Didn’t Say What You Wanted It To Say In Elonis

June 3, 2015 (Mimesis Law) — Many Americans expected that before the end of this term, the Supreme Court would tell the nation just how much of a dick somebody can be on social media.  After the Court released its opinion in Elonis v. United States on Monday, many may be disappointed.

Anthony Elonis was convicted of breaking a federal law prohibiting threats when he posted violent comments about his estranged wife on Facebook.  When his appeal reached the Court, the media deemed it one of the hot cases to watch this term.  The Court could have decided whether a law prohibiting threats violated the free speech rights of bitter ex-husbands.  It could have told us whether online stalkers could terrorize their victims with nonstop nasty words.  Or something like that.

While the media and holders-of-opinions-about-stuff declared Elonis all about online speech, the Supreme Court had other ideas.  The decision focused on a preliminary question.  When Congress created the threat statute, it didn’t bother to specify the intent requirement.  So, did the jury need to find that Elonis had the conscious purpose of making a threat?  What if he knew that his estranged wife would perceive his words as an actual threat?  What if a reasonable person would?

The majority held that something more than mere negligence was required.  Since the instructions given to Elonis’s jury cited the negligence standard, the Supreme Court reversed and remanded.  Anthony Elonis gets a new trial, and a lot of reporters get to scratch their heads or shake their fists because none of this matches their image of the case.

What’s The Matter?

Some observers have voiced frustration that the Court gave a pass to the defendant.  Dahlia Lithwick writes, “it’s also a tricky case because one never quite gets past the sense that Anthony Elonis very much wanted to terrorize and shame his estranged wife and that he just got away with something that creepy men get away with all the time.”

This concern seems strange: there’s a non-zero chance that a jury could find that Anthony Elonis “very much wanted to terrorize and shame his estranged wife” and that he very much intended to threaten her . . . in which case, he would not be a creepy man who got away with anything. Rather he would be a creepy man convicted by a properly instructed jury.

Other writers have criticized the Court for sidestepping the important stuff by deciding the case on a mere technicality.  Elie Mystal writes, “The real issue here was whether a threat is non-threatening in the context of artistic impression. [ . . . ] Where is the line? The Court didn’t answer that. They left the law more muddled than it was yesterday [ . . . ] At this moment, nobody has any clue what they can say or not say on Facebook. Bang up job, Supreme Court of the United States.”

This criticism seems doubly weird.  First, if you read the briefs or listen to the oral arguments, the Court’s focus on the mens rea question comes as no surprise.  Second, the Court’s method for deciding what mental state to apply in cases like this is pretty damned consequential, hardly a technicality or a distinction without a difference.  There are too many statutes without express intent requirements.  There are too many defendants whose fate hangs on what to do with those statutes.  Perhaps the debate in Elonis turned out to be dry, but a solid opinion on statutory interpretation matters a whole lot more to a whole lot more people than a juicy opinion about precisely how many rape references someone can make on Twitter.

Did the Supreme Court in Elonis give us a solid guidance on statutory interpretation in criminal law?

Oh, God, no.

If anything, Elonis showed just how muddled and messy the Court’s reasoning on culpable mental states often is.  The Justices can’t even agree on what language they should be using to frame the issue.

Federal criminal law employs an awkward pidgin, with courts struggling to find common language between the Common Law’s “willfulness” and “general intent,” and the standardized hierarchy of mental states introduced by the Model Penal Code.  The opinions of both Chief Justice Roberts and Justice Alito offer evidence of this.  They use the categories laid out by the Model Penal Code, but they obviously don’t genuflect to the actual MPC, including its default rules for interpreting criminal statutes.

In the absence of the MPC’s precisely defined rules, the Supreme Court must sift through its own jurisprudence, trying to lift helpful nuggets from Morissette, X-Citement Video, Staples, and the rest.  They get a little bit here, a little there.  The closest thing to a rule amounts to this nugget: “When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent’ conduct.”

In Elonis, the majority will say only that negligence is not enough to do that.  Justice Alito agrees with the majority that serious statutory offenses with missing requirements should be construed as requiring more than mere negligence.  He cites to the Model Penal Code’s hierarchy, which places recklessness one level beyond negligence, and sees no reason for the Court to decide any more.

According to Justice Thomas’s dissent, there’s no problem with the jury instructions’ version of the intent requirement, no conflict with the First Amendment.  Readers will notice that Justice Thomas doesn’t simply arrive at a different conclusion than the majority and Alito.  Thomas uses a different vocabulary to address the issue.

Justice Thomas adopts a pre-Model Penal Code dialect.  He would read the statute “to require proof of general intent.”  He speaks of “actus reus.”  “General intent” hovers in some unmapped territory between negligence and recklessness.  That term’s imprecision is one of the stronger arguments in favor of the MPC’s clearly defined hierarchy of culpable mental states.  His argument has hints of the offense analysis used under Common Law, not the element analysis of the MPC.

Even if Thomas’s fixation on “general intent” seems archaic, at least he is willing to acknowledge that proof of such intent is a reasonable expectation for prosecutors.  At oral arguments, Justice Ruth Bader Ginsburg asked John Elwood, counsel for Elonis, “How does one prove what’s in somebody else’s mind?  This case, the standard was would a reasonable person think that the words would put someone in fear, and reasonable people can make that judgment.  But how would the government prove whether this threat in the mind of the threatener was genuine?”

Indeed.  How could we possibly build a system that demands the government to prove beyond a reasonable doubt what’s in a defendant’s mind.

Except that’s exactly what we ask prosecutors to do all the time.

None of this linguistic and conceptual confusion, though, undercuts the importance of the case as a telling picture of how the Court currently thinks about a central matter in criminal law.  The Court’s imperfect reasoning on this issue doesn’t explain Court watchers like Mystal or Lithwick focus so much on what they do.  And while Justice Ginsburg was probably asking her question to nudge counsel into fleshing out an aspect of the argument, I’m not so sure about a lot of other people who have posed the same question as a criticism of the Court’s decision in Elonis.

Why Has So Much Attention Given To Elonis Been So Focused Elsewhere?

Media coverage — and public interpretation — of what the Supreme Court favors simplicity and relatability.  Cases create buzz when average folks can imagine themselves or people they know in similar situations.  Same-sex marriage.  Obamacare. Abortion.  Talking trash on Facebook.  The sexy issues get the press.

Statutory interpretation?  Jurisdiction?  Procedure?  These make for lifeless and arcane headlines.  And two things a headline must not be, especially in the era of listicles and clickbait, are (1) lifeless, and (2) arcane.

You know what doesn’t sound sexy?  Debates over whether and how to reconcile the hierarchy of mental states inherent in the Common Law tradition and those specified by the Model Penal Code.  Less sexy still?  Let’s talk about statutory construction default rules.

Even as I write this, I can hear the faint sound of hordes of readers clicking on links to other sites.

Most people don’t debate at dinner parties how to translate “general intent” into MPC terms.  (Though you should totally try coming to one of my dinner parties some time.)  You can’t dispense with the issue with one quick flick of a rapier wit.  But just because an issue isn’t easy to form an opinion on, just because it doesn’t get traction with the mass media, doesn’t mean that it isn’t important.

What looks like the drab machinery of appellate law matters a whole hell of a lot.  We hire those nine Justices at One First Street to handle the drab machinery of appellate law.   I don’t want them telling me what they think about rap lyrics or internet comments.  I want them to clarify the canons of construction.  I want them to get straight what exactly it’s going to take for someone to go to prison when he’s being prosecuted for a law that the legislature decided not to mention the requisite culpable mental state for.

Sorry if you didn’t get to have SCOTUS tell you exactly how much of a dick you can be on social media.

7 Comments on this post.

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  • Wrongway
    4 June 2015 at 4:04 am - Reply

    well I just learned 2 things..

    I need to study ‘mens rea’ a lot more because I just don’t get it..

    And while I’ve been speaking it for years, I didn’t know how to spell it … ‘pidgin’

    ok 3 things,.. pidgin + mens rea sounds like something that happens after eating canned chilli..

    Great article..

  • Clarence Thomas Stands Alone | Innovations in Law
    6 June 2015 at 7:56 am - Reply

    […] Elonis is the “Facebook First Amendment case,” though on Fault Lines this week, I offered my analysis of Elonis and why that characterization irks me.) Justice […]

  • j
    6 June 2015 at 3:08 pm - Reply

    It depends one who the person is. A police officer can make a statement as to why he beat or killed some unarmed person and the courts have ruled that his/her comments and written police report shows what went on in the cops mind…citizens thoughts are always abstracted and are unknown even if they are spelled out for all to see…

  • Elonis, Reason, and Federal Subpoena Power | The Collaborative Compound
    9 June 2015 at 10:20 am - Reply

    […] say what that something more was.  Again, I refer  you out to an excellent post by Tamara Tabo at Mimesis Law and another excellent “Lawsplainer” by Ken White at Popehat if you want to learn more […]

  • Allison Parker Murder From Killer’s POV
    27 August 2015 at 8:35 am - Reply

    […] of this year, after Elonis challenged his conviction under a threat statute.   Although SCOTUS did not satisfy public curiosity about the outward limits of Facebook jackassery, it did address — sort of — important […]

  • SCOTUS’ Message in Mellouli: No One Should be Deported Because They Wear Socks
    29 October 2015 at 3:12 pm - Reply

    […] 9, 2015 (Mimesis Law) — While the world was busy digesting Elonis v. United States, the “Facebook threats” case decided by the Supreme Court, immigration […]

  • Seventh Circuit Upholds Federal Conviction for Threatening Facebook Rant
    21 February 2017 at 9:05 am - Reply

    […] Bradbury had to have a specific intent, although the court did refer to the then pending case of Elonis v. United States. It was a case with similar facts: a person posted a threat to police on Facebook. Although the […]