Elonis v. United States: at the crossroads of First Amendment and criminal jurisprudence in the digital age.

• Author: Kass, Matt

1. TRUE THREAT OBJECTIVE ANALYSIS 115 II. THE FAILED NEGLIGENCE STANDARD AND THE STRUGGLE TO FIND THE REASONABLE PERSON ONLINE 121 III. KNOWINGLY AND PURPOSELY: THE STRUGGLE TO UNMASK THE MAN BEHIND THE KEYBOARD 125 IV. THE DIFFICULTY INTERPRETING MENS REA ONLINE AND THE INTERNET AS A DISTINCT COMMUNICATION MEDIUM 127 V. THE RECKLESSNESS STANDARD SOLUTION TO ONLINE THREATS 130 VI. A NEW APPROACH TO ONLINE THREATS APPLIED TO ELONIS V. UNITED ST A TES 132 VII. THE PROPOSED TRUE THREAT ANALYSIS AND THE CASE OF JUSTIN CARTER 137 VIII. CONCLUSION: THE DIGITAL MARKETPLACE OF IDEAS AND A CONTINUED NEED FOR BALANCE 139 "[E]very man--in the development of his own personality--has the right to form his own beliefs and opinions.... Hence, suppression of belief, opinion and expression is an affront to the dignity of man, a negation of man's essential nature." (1) The ink that our Founding Fathers used to pen the Constitution may have dried along with the dreams of equal ideas to barter and negotiate within our society's marketplace of ideas. (2) In recent years this ink has begun to fade, and the marketplace has closed its doors to the fringes of First Amendment protection.

   While someone who shouts fire in a crowded theater has never been popular in the marketplace of ideas, (3) the Chaplinsky v. New Hampshire (4) decision began carving out entire classes of words, expressions, symbolism, and speech from the marketplace of ideas with a two-tier First Amendment theory. (5) The first tier is protected First Amendment speech that adds value to the marketplace of ideas. (6) The second tier, composed of unprotected speech, "[is] certain well-defined and narrowly limited classes of speech... [including] the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (7)

   In 2003, Virginia v. Black (8) sought to scale back this two-tiered theory by holding that it is not unpopular speech that should be proscribed by state statute but only speech with intent to threaten. (9) Virginia focused on the issue of cross burning and held that a blanketed ban on all cross burning was unconstitutionally overbroad in that the statute limited not only unprotected speech but protected speech as well. (10) Virginia held that it was not the Court's job to judge morality or punish unpopular opinion, but to proscribe speech when speech went further than mere advocacy into the realm of true threats. (11) To determine whether cross burning constituted a true threat, the Court looked to the historical context of cross burning and found that cross burning may be political speech protected under the First Amendment. (12)

   The marketplace of ideas, similar to many other markets, has moved online in the digital age. However, while many new markets face threats of hacking or data breach, the marketplace of ideas faces new First Amendment challenges to its afforded protection. James Madison and our Founding Fathers may never have envisioned the growth of the digital age and the new struggles between the chilling effects of First Amendment suppression and protecting victims of online threats, but such has been the theme in recent online First Amendment controversy.

   In Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, context proved key and true threat analysis found its way to the Internet when the Ninth Circuit used a totality-of-circumstances analysis to determine that an objective reasonable person can find a pro-life website depicting abortion doctors as wanted posters was a true threat to the doctors' lives. (13) However, while a similar objective reasonable person analysis may help us in determining whether the speech is protected under the First Amendment, when we move into the fringes of the First Amendment to the gray area of true threats, a second-tier speech class, we are playing dangerously close to the realm of criminal law where courts criminalize the individual and not only the speech he wishes to convey.

   In this intersection between criminal and constitutional law, between the First Amendment and criminal intent, we find Anthony Elonis, under his rap name Tone Dougie, and his charge of transmitting threats via his Facebook account. (14) While Elonis's rap pseudonym, Tone Dougie, may have committed a true threat to his respective audiences, the question remained whether Elonis had the requisite guilty mind consistent with criminal law analysis to be found guilty of transmitting such a threat.

   Elonis believed "[a]rt is about pushing limits," (15) and he was "willing to go to jail for [his] constitutional rights." (16) When Elonis's ex-wife left with their children, and Elonis was fired from his job, he began posting violent lyrics that he claimed were therapeutic on his Facebook page. The lyrics violently detailed killing his wife, co-workers, an FBI agent, and committing a shooting in an elementary school. (17) As a result of his Facebook postings, Anthony Elonis was charged under Federal Statute 18 U.S.C. section 875(c), which makes it a crime to transmit any communication containing a threat to injure another. (18) However, the key to the interstate threat statute is not what is within the text, but what is in fact missing and what the Court in Elonis v. United States missed, the element of mens rea or a guilty mind, vital to a criminal conviction. (19)

   Part One of this Note will address true threats by first tracing the origin and application of the true threat doctrine. This section will argue that the appropriate test to determine a true threat should be an objective reasonable person standard that examines whether the speech was political, expressly conditional, and the reaction of the audience to the speech. These three factors can be further analyzed using a contextual and historical analysis to determine the full scope of the content and whether it falls on the side of protected speech or unprotected true threats. (20) Through this totality-of-circumstances analysis, it will be evident that a true threat and not a fighting words doctrine is the more appropriate First Amendment framework to determine when content rises to the level of a criminal threat online.

   After introducing the threshold true threat objective reasonable person analysis, Part Two of the will shift to whether Anthony Elonis had the necessary mens rea to be charged with transmitting a threat via the Internet. The mens rea criminal analysis will look to balance the right of the recipient of the alleged threat to feel safe with the rights of the accused to post controversial speech. I will begin to survey the mens rea landscape and analyze why negligence, an objective reasonable person standard, is both dangerous and ineffective when determining the mens rea of an online threat case.

   In Part Three, subjective intent is proffered as the necessary mens rea required for online threat analysis. Additionally, this section will explore how the two highest levels of mens rea culpability--knowingly and purposely--would allow for speakers to mask their criminal intentions behind ignorance and thus create a haven for domestic abusers online. In Part Four, before constructing the recklessness standard used for regulating cyber-speech, the unique nature of the Internet as a communication medium and the challenges specific to online speech will be examined. Part Five will scrutinize the Elonis Court's failure to determine the mens rea standard for online threats and find that while the mens rea analysis does present challenges on the Internet, juries can use background content such as online behavior to help determine whether the speaker intended to post true threats. Ultimately, this Note will advocate for a fact-intensive totality-of-circumstances recklessness standard as the most appropriate balance between the rights of the accused and victims of perceived threats.

   In Part Six, the objective true threat test and the subjective mens rea analysis will be applied to the facts of Elonis to find that Elonis's postings often constituted true threats and his behavior showed a reckless disregard towards the recipients of such alleged threats. Part Seven will analyze a recent online threat case where Justin Carter, an avid gamer, was accused of transmitting an online threat during a Facebook argument with a fellow League of Legends player. I will determine that while the First Amendment may or may not protect Carter's speech, Carter ultimately did not have the necessary recklessness mens rea to be criminally charged with transmitting a threat.

   The conclusion will address some of the continued dilemmas we face in the digital marketplace of ideas and how a balance between the rights of the accused to be entitled to breathing space in their expression with the rights of victims to feel safe from threats is essential as the marketplace of ideas moves forward in the digital age.

1. TRUE THREAT OBJECTIVE ANALYSIS

   The threshold question in an online threat case will ask whether the content in question falls under the first tier of First Amendment protection or one of the subcategories of unprotected speech. The definition of a true threat was first articulated in Watts v. United States. (21) In Watts, the defendant, during an anti-Vietnam rally, stated, "I am not going. If they ever make me carry a rifle the first man I want to get in my sight is L.B.J." (22) The Supreme Court reversed Watts' conviction and held that his statements were not true threats but mere political hyperbole. (23)

   The Court looked at the context of the political speech, whether the statement was expressly conditional, and the reaction of the listeners to the defendant's speech. (24) It determined that in a context such as an anti-Vietnam political rally, the conditional statement, absent a specific time in which the defendant would attack...