By Jenica D. Hughes; Staff Member (Vol. 14), Executive Editor (Vol. 15)
Picture this, you marry someone you love and start creating a life together. Eventually, you have two children together, whom you adore, but eventually, your marital relationship begins to suffer and the two of you are arguing more often and decide to divorce.
One day, you check Facebook and see your sibling’s status about taking your children Halloween shopping. You smile, appreciative of your family and their support, but then you notice a comment below: “Tell [your son] he should dress up as matricide for Halloween. I don’t know what his costume would entail though. Maybe [your name]’s head on a stick?” You are shocked and upset, and then you realize that comment came from your ex-spouse, and you find additional violent comments and “rap lyrics” on your ex-spouse’s Facebook directed at you. You then seek help by petitioning for a protective order, only for your ex-spouse to write that a protective order is just a piece of paper, not a bulletproof vest.
Now reverse the scenario. You were married to your spouse for seven years and when your marriage ended, you began to express yourself through art and picture yourself as the next Eminem. You feel confident in your First Amendment rights, but find yourself in court facing a prison sentence for expressing yourself through those words. The trial court finds you guilty of transmitting threats via interstate commerce, a decision affirmed by the Third Circuit. The Supreme Court is your last hope. Two issues are raised in deciding your case: Whether the statute you were convicted under has a subjective intent ormens rea element, and whether the statute itself is unconstitutional pursuant to the First Amendment.
Victim Rights and Civil Liberties Implicated in Elonis v. United States
Ultimately, when the Supreme Court was faced with these facts in Elonis v. United States , the Court held that 18 U.S.C. § 875(c) , the statute regulating interstate communications, required that the defendant be aware of the threatening nature of the communication. In doing so, the Court sidestepped the First Amendment issue. The Court also declined to answer exactly what mental state Elonis, and like defendants, would be required to have to support a conviction under 18 U.S.C. § 875(c) . This post proposes a true threats intent standard that attempts to balance the competing safety and security needs of domestic violence victims with the civil liberties interests of defendants in a way that fairly represents the interests of all parties.
Domestic violence advocates were pleased with the Court’s side-step of the constitutional issue in Elonis because they tend to focus on protecting victims from the very real consequences of being exposed to threats. Threats are “strongly correlated with the likelihood of physical violence” and “direct threats of violence lead to significant physical violence for more than half of victims.” In contrast, civil liberties groups tend to err on the side of all speech is good speech unless it falls into a very narrowly defined category of speech, such as libel or child porn. Often civil liberties groups fear that speech will be chilled if too broad a category of speech is drawn. The interests on both sides of this particular argument are compelling, which makes balancing such interests of vital importance.
Striking an Appropriate Balance
To meet the competing needs of victims and defendants, the Supreme Court should have found that the appropriatemens rea to convict someone of a true threat is reckless disregard. Reckless disregard is the appropriate standard for the Supreme Court and lower courts to impose when addressing this issue. To act with reckless disregard is to “ disregard a risk of harm of which [the individual] is aware .” Justice Alito, in his concurrence in part and dissent in part in Elonis , agreed. He wrote, “Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.”
True threats fall outside of First Amendment protection and are defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals ” regardless of whether the speaker intends to carry through with the “threat”. Because a threat in and of itself creates harm, particularly in cases of interpersonal violence, imposing a mens rea requirement higher than reckless poses asignificant danger to the mental health of domestic violence victims. Furthermore, if the Court were to determine that knowledge or purpose were the more appropriate standard, threats would become “ one of the most protected categories of unprotected speech .” Indeed, recklessness is the standard that applies to criminal and civil libel, so there is little reason to believe it would be unconstitutional in this context. Given the serious impacts of threats on victims, holding threats out to be one of the most constitutionally protected forms of speech makes little sense.
For the foregoing reasons, reckless disregard is the appropriate mens rea that should be applied by the lower courts and, should the issue come before it again, the Supreme Court.