Here’s a case that will have free-speech skeptics frantically grabbing their “buts.” A federal court convicted Anthony Elonis for posting “violent messages” on Facebook, claiming that a reasonable person would interpret them as direct expressions of an intent to commit violent acts. The ACLU and Elonis’ attorneys argued that his messages were protected speech and that the test of legality cannot be the interpretation of the listener but the intent of the speaker. The Supreme Court agreed, at least to an extent, vacating the conviction but sending the case back to the district court:

John P. Elwood, Elonis’ lawyer stressed in court briefs that his client often posted disclaimers noting he was only exercising his freedom of speech. “The First Amendment¹s basic command is that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable,” Elwood wrote. At trial , Elonis testified that his Facebook posts were partly inspired by rap star Eminem.

In court briefs Solicitor General Donald B. Verrilli, Jr defended the conviction.”He was aware of the meaning and context of his Facebook posts, and those posts communicated a serious expression of an intent to do harm, “Verrilli wrote.Verilli said there was no comparison between Elonis’ threats and the protected speech of commercial rap artists made in a “very different” context. But the ACLU filed a brief in support of Elonis argued that context matters. “Words are slippery things,” wrote Stephen Shapiro. He said that a statute that limits speech “without regard to the speaker¹s intended meaning” runs the risk of punishing protected First Amendment expression simply because it is “crudely or zealously expressed.” …

The Court said that it wasn’t enough to convict him based solely on how a reasonable person would regard his communications as a threat. The Court left open what standard should be used.

“Our holding makes clear that negligence is not sufficient to support a conviction,” wrote Chief Justice John Roberts.

 The vote went 7-2 in Elonis’ favor, with Roberts writing for the majority. The opinion makes clear that prosecution for speech requires at least some established mens rea on the part of the speaker to communicate an actual threat, and not just the impression of a threat on the part of listeners:

The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” Morissette v. United States, 342 U. S. 246, 250 (1952). This rule of construction reflects the basic principle that “wrongdoing must be conscious to be criminal.” Id., at 252. As Justice Jackson explained, this principle is “as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Id., at 250. The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Id., at 252; 1 W. LaFave, Substantive Criminal Law §5.1, pp. 332–333 (2d ed. 2003). Although there are exceptions, the “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.” United States v. Balint, 258 U. S. 250, 251 (1922). We therefore generally “interpret[] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them.” United States v. X-Citement Video, Inc., 513 U. S. 64, 70 (1994).

However, Alito wonders why the court doesn’t establish an acceptable definition of “threat” to guide future courts:

The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But 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. …

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. Accordingly, I would hold that a defendant may be convicted under §875(c) if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat. Nothing in the Court’s noncommittal opinion prevents lower courts from adopting that standard.

Interestingly, Clarence Thomas argues that the First Amendment does not apply in Elonis:

In addition to requiring a departure from our precedents, adopting Elonis’ view would make threats one of the most protected categories of unprotected speech, thereby sowing tension throughout our First Amendment doctrine. We generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech. For instance, the Court has indicated that a legislature may constitutionally prohibit “‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction,” Cohen v. California, 403 U. S. 15, 20 (1971)—without proof of an intent to provoke a violent reaction. Because the definition of “fighting words” turns on how the “ordinary citizen” would react to the language, ibid., this Court has observed that a defendant may be guilty of a breach of the peace if he “makes statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended,” and that the punishment of such statements “as a criminal act would raise no question under [the Constitution],” Cantwell v. Connecticut, 310 U. S. 296, 309–310 (1940); see also Chaplinsky v. New Hampshire, 315 U. S. 568, 572– 573 (1942) (rejecting a First Amendment challenge to a general-intent construction of a state statute punishing “‘fighting’ words”); State v. Chaplinsky, 91 N. H. 310, 318, 18 A. 2d 754, 758 (1941) (“[T]he only intent required for conviction . . . was an intent to speak the words”). The Court has similarly held that a defendant may be convicted of mailing obscenity under the First Amendment without proof that he knew the materials were legally obscene. Hamling, 418 U. S., at 120–124. And our precedents allow liability in tort for false statements about private persons on matters of private concern even if the speaker acted negligently with respect to the falsity of those statements. See Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 770, 773–775 (1986). I see no reason why we should give threats pride of place among unprotected speech.

There is always a risk that a criminal threat statute may be deployed by the Government to suppress legitimate speech. But the proper response to that risk is to adhere to our traditional rule that only a narrow class of true threats, historically unprotected, may be constitutionally proscribed.

The solution is not to abandon a mental-state requirement compelled by text, history, and precedent. Not only does such a decision warp our traditional approach to mens rea, it results in an arbitrary distinction between threats and other forms of unprotected speech. Had Elonis mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or recklessly disregarded that possibility. Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant. That need not—and should not—be the case.

Nor should it be the case that we cast aside the mental state requirement compelled by our precedents yet offer nothing in its place. Our job is to decide questions, not create them. Given the majority’s ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today’s decision rests.

Alito agrees in part:

Elonis argues that the First Amendment protects a threat if the person making the statement does not actually intend to cause harm. In his view, if a threat is made for a “‘therapeutic’” purpose, “to ‘deal with the pain’ . . . of a wrenching event,” or for “cathartic” reasons, the threat is protected. Brief for Petitioner 52–53. But whether or not the person making a threat intends to cause harm, the damage is the same. And the fact that making a threat may have a therapeutic or cathartic effect for the speaker is not sufficient to justify constitutional protection. Some people may experience a therapeutic or cathartic benefit only if they know that their words will cause harm or only if they actually plan to carry out the threat, but surely the First Amendment does not protect them.

Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. To make this point, his brief includes a lengthy excerpt from the lyrics of a rap song in which a very well-compensated rapper imagines killing his ex-wife and dumping her body in a lake. If this celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. “Taken in context,” lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Watts, supra, at 708. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.

The messages do sound threatening (as readers will see in a moment), and on the basis of negligence as the standard, it’s easy to see why a jury convicted Elonis. If the standard was recklessness, as Alito posits as a hypothetical (not necessarily as an endorsement), then a jury might still convict. But as Elonis’ attorneys argued, it’s difficult to see the difference about a Facebook posting regarding shooting up a school and song lyrics about conducting drive-by shootings in terms of the free-speech argument. The latter may be considered artistic expression, but lacking an established intent to conduct such a shooting, how is it different for Facebook prose?

Roberts offers an explanation, and the messages themselves:

The facts of this case illustrate the point. Imagine the effect on Elonis’s estranged wife when she read this: “‘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.’” 730 F. 3d 321, 324 (CA3 2013). 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.” Ibid. Or this: “Fold up your [protection from abuse order] and put it in your pocket[.] Is it thick enough to stop a bullet?” Id., at 325.

There was evidence that Elonis made sure his wife saw his posts. And she testified that they made her feel “‘extremely afraid’” and “‘like [she] was being stalked.’” Ibid. Considering the context, who could blame her? Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. See Brief for The National Network to End Domestic Violence et al. as Amici Curiae 4–16. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.

Perhaps, but then the issue is an intent to threaten, intimidate, or extort, which would be a different standard and one which still requires a mens rea for criminality, although it doesn’t seem difficult to meet that standard more substantially than just “negligence” — in other words, past the point of saying the speech alone is criminal just on its own merits. It’s likely that the lower court will hold a new trial for Elonis, and the outcome may not be much different even with the higher bar for conviction. It certainly looks like Elonis intended this as a specific threat, but prosecutors still have to prove that past the point of mere negligence to overcome the First Amendment.

The Elonis decision illustrates just how much latitude speakers have under the First Amendment, and how restricted government action is under it. It will serve as an excellent reference the next time someone tries to argue that “hate speech” is not protected under the First Amendment.