Technology and the role of intent in constitutionally protected expression.

• Author: Villasenor, John

INTRODUCTION

Intent and context matter enormously in communication. While that has always been true, social media services, smartphones, the cloud, and other recent technological innovations have fundamentally changed the landscape of expression. And they have done so in ways that have profoundly important consequences with regard to understanding the limits of First Amendment protections.

Today, the quantity of expression, measured in distinct, easily archivable communications transmitted from one person to one or more recipients, is dramatically higher than in the past. In less time than it would have taken to produce a single handwritten letter in the pre-digital era, a person can now issue dozens of texts, tweets, or other electronic communications. The potential to send large numbers of messages is not merely theoretical: A 2013 survey found that U.S. smartphone users in the eighteen to twenty-four age group were sending an average of sixty-seven text messages per day. (1) Most adults in higher age brackets also sent dozens of daily text messages, though fewer than those in the eighteen to twenty-four group. (2) To further complicate matters, people are not the only ones speaking: Many tweets, for example, are now issued by computers programmed to mimic human behavior. (3)

In addition, the number of potential pairings of speakers (4) with listeners has skyrocketed. In the United States there are well over sixty million active (5) Twitter users, (6) each of them broadcasting messages that can be read by anyone in the world with an Internet connection. (7) There are also about one hundred million active U.S. users of Instagram (8) and several hundred million active U.S. users of Facebook, (9) many of whom are regularly engaged in publishing content. In the pre-Internet era, only a small percentage of people were broadcasters. Today, most people are.

In combination, these changes mean that even if only a tiny fraction of expression raises questions of First Amendment limits, in absolute terms the number of communications in that fractional category is now immense. A further complication is that technology has made it easy to copy, forward, excerpt, comment on, archive, and remix content. Messages written with one audience in mind are commonly retransmitted to other audiences in other contexts, often in a manner outside the control of the original speaker. Both very short time spans and long time spans can strip context: In minutes, a message in cyberspace can outrun the person who created it, repackaged and repurposed by others in ways that may mask or appear to alter a speaker's original intent. Long time spans can also alter apparent meaning. A digital message can be dredged up and re-circulated months or years after its original composition and then interpreted in light of intervening events that the message's author could not have foreseen.

The potential impact of impulsive and spontaneous expression has also changed. As has always been the case, statements associated with emotions such as surprise, fear, anger, joy, and disappointment are often made in the heat of the moment without significant forethought regarding their consequences. In the pre-digital era such statements were often made verbally in person and would linger in the air for only a few seconds. Today, spontaneous expression is often conveyed electronically and therefore automatically archived, exposing it to scrutiny weeks, months, or years into the future. (10)

In short, because of today's rapidly changing communications technology landscape, the role of speaker intent is more complex than ever before. And questions regarding intent are particularly acute when expression allegedly falls outside the bounds of First Amendment protection and, relatedly, within the scope of criminal statutes addressing communications. This issue was central to Elonis v. United States, (11) which considered a conviction arising from a series of threatening Facebook posts. But while the Supreme Court's June 2015 ruling in Elonis confirmed the importance of intent with respect to the federal criminal statute in question, (12) it did not clarify the specific level of intent required for conviction under that statute. (13) More fundamentally, the Court did not reach the broader constitutional question regarding the role of intent with respect to the scope of First Amendment protections.

This Article argues that as communications technologies continue to evolve, they will increasingly enable information dissemination in ways that can reduce, alter, or remove context from a speaker's original expression. In light of these changes, maintaining a traditional view of the role of mens rea will provide an increasingly important bulwark against inadvertently criminalizing expression that in fact deserves First Amendment protection. (14) This Article also takes the position--perhaps unpopular in some circles in light of alarming but increasingly common views suggesting that the First Amendment is "outdated" (15)--that failure to properly recognize speaker intent would have consequences far beyond criminal law, leading to an erosion of civil liberties regarding expression (including technology-facilitated expression) in a much broader set of non-criminal contexts.

The rest of this Article is organized as follows: Section I discusses how technological changes including the Internet, social networking, and smartphones are complicating the relationship between intent and communication. Section II provides historical context regarding mens rea and the growth in statutes and regulations that are silent on intent, and also briefly discusses recent attempts at federal mens rea reform. Section III reviews the 2015 Supreme Court ruling in Elonis v. United States and considers the post-Elonis landscape regarding intent. Section IV connects the technological and legal landscapes together, using a series of hypothetical scenarios to illustrate how an examination of intent is vital in light of the many ways that information can be conveyed using existing and emerging communications technologies. Section V presents conclusions. While the discussion herein focuses primarily on intent in the context of expression that could expose a speaker to criminal liability, some (though certainly not all) of the examples and analysis are also relevant in the context of civil liability. (16)

1. TECHNOLOGY AND INTENT IN COMMUNICATIONS

   For most of American history, communications and intent have been more consistently and reliably intertwined than they are today. Sending a letter in the late eighteenth century, a telegram in the nineteenth century, or making a phone call in the twentieth century all involved an affirmative choice to convey information to--and typically to also receive information from--another person. In addition, it has long been possible to convey a single message to many people, often with the aid of technology. In the Founding Era, the printing press was used to enable wide distribution of written expression. In later centuries, audio amplification and recording and then radio and television broadcasts facilitated one-to-many communication. In all of these cases, while interpretations of the content of a given message could vary, there was little uncertainty regarding either the intent of the speaker to disseminate it or the audience he or she was aiming to reach. A person giving a television speech in 1980 was separated by two centuries from someone publishing a pamphlet in 1780, but both speakers had in common the goal of using the most effective technology of the day to ensure distribution of a message to large numbers of people.

   1. Current Communications Technology

      Technology advances since the 1990s (17) have upended this landscape in ways that can decouple the connection between the transmission of content and the intent to deliver it to a recipient. Of course, intentionally directed communications remain common: An e-mail message sent to a single recipient is in some respects the modern equivalent of a letter, created and conveyed with intent to the person who then receives and reads it. But there are many forms of modern expression that have no comparable pre-digital era analog. Today it is possible, and in fact common, for a person to create a document and cause it to be transmitted across state and perhaps international boundaries, even when he or she never intends for any other person to see it. This is exactly what occurs when someone creates a private document using a cloud-based service such as Google Docs. Another change from the past is that recipients of messages often play a far more active role in their transmission. In contrast with a nineteenth-century recipient of a letter or a telegram, who was generally uninvolved in its conveyance, users of digital services often affirmatively request transmission of information from a remote location to their own devices. Communications are often delivered to a user only after the user takes an action such as clicking a link, entering a web page address, "following" someone on Twitter, or launching an app that specifically requests content delivery. (18)

      There are also many more shades of gray than in the past with respect to how a speaker might select and interact with an intended audience. A person can engage in what amounts to a broadcast, sending a communication using a mechanism (such as a public tweet) that makes it accessible to anyone in the world with an Internet connection. At the other end of the spectrum, as noted above, creating an unshared, private document in the cloud means transmitting its contents--perhaps over thousands of miles--to no one but its creator. There are many points between these extremes. A speaker can direct a communication to a single recipient by using an e-mail message sent to a single addressee, a "direct message" on Twitter, a "private message" on Facebook, or through...