Elonis: Trash Talk v. True Threats

Those of you who spend time on Facebook and other social media sites know that the boundaries of free speech can be stretched to cover all sorts of uncivilly spoken smack. There is a limit on what can be said, however. One such limit is what the law calls “true threats.”

The First Amendment is simplicity itself: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Let’s focus on the free speech clause. Does the Constitution mean what it says? Congress can make no — none, zero — law limiting my freedom to say whatsoever crosses my mind?


As interpreted by the Courts, and never forget that the law is just disembodied speech until transformed into doctrine applied by a judge, a true threat is forbidden. What is a true threat? A “serious expression of an intention to commit unlawful physical violence;” it’s more than “political hyperbole” or “vehement, caustics and sometimes unpleasantly sharp attacks,” the Court tells us.

How do you draw the line between a true threat and trash talk?

From time to time I receive emails or other electronic communication of a decidedly uncivil cast. Readers of this column have wished me rectal cancer; I’ve been told how easy it would be to beat me up, etc. I generally shrug these missives off, refusing to pay rent for the space I occupy in the sender’s mind.

But I’ve never been the target of a note from Anthony Douglas Elonis. He has a unique way with words, as in the time he wrote the following:

• Regarding a former employer after being fired: “I have sinister plans for all my friends … Y’all think it’s too dark and foggy to secure your facility from a man as mad as me?”

• Regarding his ex-wife: “Did you know it’s illegal for me to say I want to kill my wife? … Now it was okay for me to say it right then because I was just telling you it is illegal for me to say I want to kill my wife.”

• Regarding a protective order his ex-wife received against him: “Fold up your (order) and put it in your pocket. Is it thick enough to stop a bullet?”

• Regarding a nearby school: “I’m checking out and making a name for myself … to initiate the most heinous school shooting ever imagined … hell hath no fury like a crazy man in a Kindergarten class.”

• Regarding an FBI agent who paid him a visit: “So the next time you knock, you best be serving a warrant and bring yo’ SWAT and explosives expert while you’re at it.”

Mr. Elonis, who fancies himself to be an aspiring rapper, posted all this and more on Facebook under his nom de guerre, “Tone Dougie.” He also posted disclaimers from time to time, saying this chatter was merely “fictitious” and was not intended to resemble “real people.”

Federal prosecutors regarded these remarks as threats and secured a conviction under a law making it a federal offense to use interstate commerce to threaten to injure another.

Were these utterances truly threats?

Were I Dougie’s ex-wife, I’d likely think so. Were I an FBI agent set to search the would-be rapper’s home, I’d be wary. I wouldn’t want to send my children to a school near Mr. Elonis’s home. But are these true threats?

At trial, the judge told jurors that in making this decision they were to evaluate Mr. Elonis’s statements from the standpoint of a “reasonable person.” Would such a person interpret these statements as “a serious expression of an intention to inflict bodily injury.”

The Supreme Court said this is the wrong standard, and, effectively, undid Mr. Elonis’s conviction. (He had been sentenced to serve 44 months in prison.)

Legal standards are to the law what muscles are to medicine. The law’s doctrines stand as a motionless skeleton until they are set in motion. Legal standards tell us how we are to evaluate what we are seeing, how to make law work.

Thus, in terms of Dougie’s intemperate rants, the “reasonable person” standard basically asks jurors to consider how an ordinary person might feel about the statements. In effect, this standard made jurors into a bevy of Miss Manners, free to criminalize uncivil speech merely because it makes them uncomfortable.

The Supreme Court ruled this violated the First Amendment. We are free to speak regardless of what our neighbors think, so long as we don’t utter true threats. (Or scream “fire” in a movie theater.)

Central to the Court’s decision was deep suspicion of a law that punished without considering whether the accused had what jurists refer to as a “guilty mind.” Did Mr. Elonis intend to threaten others with his speech? Critical to any criminal charge is an inquiry into whether the defendant had any “awareness of some wrongdoing.”

Determining the state of mind of an accused is often the work of circumstantial evidence. One can’t read the minds of those exercising a right to remain silent. By focusing on the actual intent of the speaker, rather than the reaction of community of fictive “reasonable people,” the Court protects all of us from the deadweight of orthodoxy.

But the Court did not conclude that Mr. Elonis’s speech was worthy of protection. It merely said that the jury had been given the wrong legal standard to decide the case. Federal prosecutors can now retry the case, asking jurors to infer that a man who speaks this way intends to threaten others.

I don’t much like Anthony Douglas Elonis. He is a braying ass. But I like self-righteous mobs even less.

I’ll read the likes of “Tone Dougie” as a guilty sort of pleasure, and I’ll defend his right to speak his mind. But I remain uncomfortable about him. His next trial should be interesting. By any standard, he’s got a screw loose.

Also listed under: Journal Register Columns


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