In US v. Elonis, 12-3798 (10/28/2016), the Third Circuit affirms Elonis’s conviction for Facebook threats -- again. SCOTUS vacated the Circuit’s original denial of Elonsis’s appeal. As a matter of statutory interpretation, a conviction under 18 U.S.C. § 875(c), transmitting a threat to injure another person in interstate commerce, could not be based solely on an objective standard (whether a reasonable person would perceived the words as a true threat). There must be a mens rea requirement greater than negligence. SCOTUS refused to state whether a mens rea of recklessness would be sufficient. However, SCOTUS wrote that the jury should have been instructed that Elonis could be convicted if it found he “transmitted a communication for the purpose of issuing a threat or with knowledge that the communication would be viewed as a threat.” SCOTUS did NOT reach the First Amendment issues.
On remand, the Third Circuit found that the trial court’s instruction containing the objective standard was harmless error. Elonis testified at trial that his posts were just rap lyrics or satire; that he never intended for anyone to feel like he was threatening them; and that he didn’t care what other people thought or said about him. Some of his posts contained statements saying that they were fictional, were not meant to depict real persons, and that he was simply exercising his First Amendment rights. The government argued at closing that even if the jury believed everything that Elonis said, that they could still convict him because “it doesn’t matter what he thinks.” However, despite Elonis’s testimony and the government’s closing, the Third Circuit found harmless error because the Government had produced evidence beyond a reasonable doubt that the defendant personally knew his communications would be viewed as a threat AND an objective person would view the communications as a threat.
For the conviction based on posts discussing his ex-wife, the Third Circuit pointed out that after a PFA hearing in which the ex-wife cited to Facebook posts as threatening, Elonis continued to post similar lyrics. For the convictions based on posts discussing state police, elementary schools, and FBI agents, the Third Circuit reasoned that because Elonis knew that posts containing very similar lyrics discussing his former co-workers had made them feel threatened, that he knew these particular posts would make people feel threatened as well.
I cannot imagine that this is the end of this case. First, while I can understand the affirmance of the conviction involving the threats to his ex-wife, I am puzzled by the affirmance of the other convictions. There was evidence that the ex-wife felt threatened by the lyrics and Elonis continued to post them even after knowing that his felt threatened (and the lyrics are objectively threatening). However, there was no such similar evidence that (1) state police, elementary schools in the area, or the FBI felt threatened, (2) that Elonis knew or found out they felt threatened, and (3) that he continued posting threatening lyrics anyway. Isn't there some need to show that Elonis knew that the particular person or people that are the "victims" would feel threatened? Indeed, it is hard to imagine how the criminalization of these generalized threats, not directed towards particular individuals, can pass constitutional muster.
Which brings me to the second reason I think we haven’t seen the end of this case. No opinion directly addresses the First Amendment concerns. Does SCOTUS's interpretion of the mens rea requirement automatically mean that the statute satisfies the First Amendment? Some of Elonis's lyrics aren’t that different (although, really of much poorer quality) than the lyrics of some successful rap artists. One of his posts was almost word for word taken from a stand-up comedy routine, which he referenced in his post. It is hard to imagine that art (even bad art) and comedy routines are not protected by the First Amendment. Does it matter that his lyrics were posted on his own Facebook page rather than transmitted to a "victim"? Does it matter that two of the "victims," the state police and the FBI, can be viewed as public officials?
Is there a rehearing petition coming? Another cert petition? I, for one, would really like some First Amendment clarity please!