Social Media is not Words with Friends

Speaking of the U.S. Supreme Court, the high court delivered another interesting opinion on Monday, this time in a case that confronted tough questions about the line that separates free speech from criminal threats.

The defendant was a 27-year-old man whose wife left him in May 2010, taking their two young children with her. The couple had been married for nearly seven years, so apparently they’d met very young, and he didn’t take the split well.

The defendant listened to rap music and was active on Facebook, so he adopted a pen name, Tone Dougie, and he began posting self-styled rap lyrics that were laden with violent language and imagery about his estranged wife. The lyrics were interspersed among other, mundane posts about a movie he liked or a comedian he followed, but they definitely stood out. The defendant posted disclaimers that these rants were fictitious, and he explained to others that they helped him process his feelings. Once, he commented, “Art is about pushing limits. I’m willing to go to jail for my Constitutional rights. Are you?”

His wife didn’t share his sense of artistic license, however; she obtained a restraining order against him, and the authorities began monitoring his social-media activity. They even paid a visit to his home. It doesn’t appear that he ever violated the restraining order, but he kept posting lyrics, and he began taking shots at the authorities, too.

These activities got him charged with five counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit a communication containing any threat to injure the person of another. It’s a felony punishable by up to five years in prison. The hook for federal jurisdiction is if you transmit the threat in interstate commerce, but nowadays, with the internet, that’s rarely a sticking point. The five counts against him were for threatening his wife, the police, an FBI agent, the local elementary schools, and the patrons and employees of the amusement park he worked at. Not in that order, necessarily, and likely to varying degrees. Mostly, I imagine, it was about his wife and related life circumstances.

At trial, the defendant testified, among other things, that his posts emulated the lyrics of rap artists like Eminem and that he’d posted “nothing … that hasn’t been said already.” At the close of trial, he asked the court to instruct the jury that, to convict him, it must find that he intended to communicate a threat. Instead, the court instructed the jury that it need only decide whether he communicated what a reasonable person would regard as a threat. Based on that instruction, the jury convicted him on four of the five counts, acquitting him of threatening the park patrons and employees. The defendant was sentenced to 44 months in prison followed by three years of probation.

On appeal, the defendant again argued that, to be guilty, he must have intended his posts to be threats, but the court of appeals disagreed, holding that the law required only that a reasonable person would regard them as such.

In a 8-1 decision, the Supreme Court reversed the case and sent it back. The Court agreed that Section 875(c) was silent on what kind of mental state makes a person guilty of the crime, but it held that this silence didn’t mean no mental state was required. Rather, under the bedrock, common-law principle of mens rea, which “took deep and early root in American soil,” a defendant’s mental state is the crucial element that separates innocent conduct—or even wrongful conduct—from criminal conduct.

Based on this principle, the Court held that negligence could not support a conviction under Section 875(c), and it reversed the case on that ground. In doing so, it considered the following examples from its own, prior cases:

• Did you take someone else’s property? Then you can’t be guilty of stealing if you thought the property was abandoned.
• Did you sell drug paraphernalia? You can’t be guilty if you didn’t know the stuff was for using drugs.
• Did you misuse government benefits in some way? You can’t be guilty of a crime if you didn’t know you couldn’t use them that way.
• Did you share child pornography? You can’t be guilty if you didn’t know the pornography depicted actual minors.

In each of these cases and others, you can’t be guilty of a crime without a guilty state of mind, even if someone else decides, after the fact, that a hypothetical reasonable person would’ve known differently.

So too, the Court held, with Section 875(c).

What is enough? Well, it’s definitely enough if you communicate a threat for the purpose of making a threat or with knowledge that it will be viewed that way.

What if you’re reckless about it? That question wasn’t presented on appeal or briefed by the parties, so the Court didn’t decide it, which is wise if the Court wants to decide it carefully on the basis of concrete facts. But the question may arise again in this very case on remand, and in any event, it may not take long for the question to present itself. As one Supreme Court justice once observed, “The life of the law has not been logic; it has been experience.”