Chief Justice John Roberts’ decision in Elonis v. U.S. raises the bar for prosecutors looking to enforce laws against online threats, making it clear that they can still win a conviction by showing the writer intended to hurt a specific individual. While agreeing with the result, Justices Samuel Alito and Clarence Thomas still thought the decision left the standard for guilt unclear. The high court reversed the conviction of Douglas Elonis for posting speech under “Tone Dougie” that appeared to threaten mother of his two children, his amusement-park coworkers and state police and included disclaimers that the violent rap lyrics were “fictitious” bearing no intentional resemblance to real people. The court agreed to Elonis argument that his writings were not criminal and that the ruling prosecutors must provide evidence that the defendant meant to hurt a specific individual. Roberts rejected the government’s argument that Section 875(c) of the U.S. Code does not mention intent while other sections do. “The fact that the statute does not specify any required mental state, however, does not mean that none exists,” he wrote. Elonis was convicted only because he sent something a “reasonable person” would consider it a threat. However, the criminal law requires awareness of guilt. Roberts on interpreting federal criminal statutes said, “we read into the statute “only that mens read which is necessary to separate wrongful conduct from ‘otherwise innocent conduct.” The government said it was laying a higher standard than negligence, because a foreigner who didn’t speak and understand English should not be convicted for posting words. However, the court rejected that explanation. Roberts also refused to decide whether carelessness would suffice, as Alito and Thomas would have done. Alito complained: The Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess. Ailto went on to say that carelessness, or disregarding a known risk forms the basis for majority of criminal liability. He would have held a defendant convicted “if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat.” To support his argument, he cites “lyrics” that Roberts left out of the opinion: “If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.’ ” Or this: “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” “A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech,” Alito wrote.
