Author:Murphy, Megan R.

INTRODUCTION I. BACKGROUND ON THE TRUE THREAT DOCTRINE A. Watts Through Black--Uncertain Protection B. Elonis--Failure to Clarify C. After Elonis--Opportunities to Elaborate II. SUBJECTIVE INTENT AS A NECESSARY COMPONENT OF FIRST AMENDMENT PROTECTION III. HOW CONTEXT CAN CLARIFY INTENT IN ONLINE SPEECH A. Accounting for Speaker Identity B. Accounting for Audience C. Accounting for Platform-Based and Technological Constraints IV. THE NEED FOR SPECIFICITY IN PROSECUTING TRUE THREATS A. Elonis on Remand B. Other Courts' Application of Subjective-Intent Standards V. ADMITTING MORE CONTEXTUAL EVIDENCE TO FACILITATE MORE ACCURATE DETERMINATIONS OF INTENT CONCLUSION INTRODUCTION

The doctrine that carves out "true threats" from First Amendment protection has been unclear, in its scope and operation, since the exception was first recognized more than half a century ago. This category of unprotected speech was recognized by the Supreme Court in 1961, in a decision that identified "true threats" as distinct from other, protected, potentially threatening speech, but did not articulate a standard which lower courts could apply to distinguish the two. (1) In the fifty years since, the Court has addressed the constitutional bounds of the true threat doctrine only once, clarifying that true threats require some showing of intent. (2) But even that more precise articulation of the standard (3) left unresolved whether the relevant intent standard is what the speaker of a threat actually, subjectively intended, or what a reasonable listener would have understood the speaker to intend. Rather than revisit the doctrine and resolve the intent-requirement question definitively, the Supreme Court has repeatedly declined opportunities to clarify, instead deciding threat cases on statutory, rather than constitutional, grounds, (4) and, more recently, declining to hear new threat cases as they arise. (5)

Even as the development of the true threat doctrine has stagnated, the nature of communication has changed dramatically with the advent of the Internet and the increasing prevalence of social media. These new platforms only heighten the stakes of inconsistencies in the true threat doctrine and highlight the need for a clear standard that tells courts whose intent governs whether a statement is a threat. (6) While in-person communication has never been immune to misunderstandings and erroneous interpretations, speech that is mediated by information networks and binary code amplifies the potential for a receiving user to interpret a statement as conveying something different than what the speaker intended to convey. (7) Where the potential for misinterpretation is great, the principles underlying the First Amendment should require that a speaker's actual intent to threaten be proved as an element of conviction, to sufficiently protect individuals whose speech might otherwise be construed as threatening due to interpretive errors, idiosyncratic usage, identity-based stereotyping, or other misrepresentation. (8) But the same online speech that reveals these weaknesses in the true threat doctrine can also be relevant in resolving them, by providing a record of how online speech was created, interpreted, and modified by a speaker and her audience. (9) This evidence, where it is available, should be put to use by prosecutors and defense attorneys to enable factfinders to more accurately assess a defendant's intent.

This Comment proceeds as follows: Part I outlines the development of the true threat doctrine up to the current juncture. Part II briefly explains how a carefully applied subjective-intent requirement should operate, in conjunction with a requirement that the punishable speech be objectively threatening, to protect the First Amendment rights of speakers by maintaining a protective zone for individuals to engage in expressive--even hyperbolic--speech without fear of prosecution for speech that inadvertently misses the mark. Part III canvasses social science literature to suggest ways in which courts can more meaningfully--and more consistently--engage with the context surrounding utterances posted on social media, which can provide more evidentiarily grounded insight into a posting user's intent if he is prosecuted for an alleged threat. Part IV assesses the extent to which courts hearing Internet-mediated threat cases are already using contextual evidence to support findings of subjective intent, and identifies shortfalls in the reasoning of these decisions where more contextual evidence would facilitate more consistent, accurate, and speech-protective outcomes. Part V considers one existing proposal for procedural reform in light of current practices.


    "'True threats' encompass those 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." (10) Applying the label of "true threat" to an utterance places it outside the protection of the First Amendment. (11) Cognizant that applying this exception broadly would run counter to the First Amendment purpose of limiting government interference with expression, the Supreme Court has always recognized the need to limit the scope of the true threat exception. (12) But the Court has so far resisted clarifying the means by which legislatures and courts should balance a government's interest in preventing individuals from living in fear after credible threats of violence with the imperative that distasteful or unpopular speech that is not imminently harmful is still subject to the protections of the First Amendment.

    1. Watts Through Black--Uncertain Protection

      In Watts v. United States, the Supreme Court upheld the constitutionality of a statute prohibiting "knowingly and willfully ... [making] any threat to take the life of or to inflict bodily harm upon the President of the United States." (13) It nonetheless reversed the conviction of the defendant-petitioner, who had been overheard in a small group discussion at an antiwar rally on the National Mall, saying, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." (14) The Court did not resolve the question raised by the divided court of appeals below, as to whether a successful prosecution required a showing that the defendant intended to carry out his threat. (15) Instead, the Court held that the threat at issue could not be a "true 'threat'" because, in the context of political debate in which it occurred, "regarding the expressly conditional nature of the statement and the reaction of the listeners," it could not have been interpreted as any more than a crude form of political speech. (16)

      Two decades later, in R.A. V. v. City of St. Paul, the Court clarified in dicta the reasoning behind the outcome in Watts. (17) That opinion explains that the harm caused by threats is the fear of violence they instill in individuals, the disruption such fear can cause, and the possibility that the threatened violence will actually occur. (18) The Court relied on this explanation in Virginia v. Black, the first case after Watts to squarely address the constitutionality of a statute prohibiting threats. (19) There, the Court held unconstitutional a statute that prohibited burning a cross with the intent to intimidate a person or group, where burning a cross could constitute prima facie evidence of that intent to intimidate. (20) In light of R.A.V.'s explanation of the harm posed by threats, intimidation constituted a "type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear," and that some cross burnings could--and historically, had--fit within this definition. (21) But the second piece of the statute, which provided that the fact of burning a cross would constitute prima facie evidence of the defendant's intent to intimidate, "strip[ped] away the very reason why a State may ban cross burning with the intent to intimidate." (22) A jury would not need to find that a defendant in fact had a subjective intent to intimidate in order to convict her, making it possible that the defendant could be convicted for an act of "lawful political speech at the core of what the First Amendment is designed to protect." (23)

    2. Elonis--Failure to Clarify

      After Black, which struck down a statute that criminalized speech without requiring that the speaker have a subjective intent to threaten, the question nevertheless remained open whether the First Amendment requires such a showing of subjective intent in a prosecution for a true threat. (24) The Courts decision twelve years later in Elonis v. United States, its next and most recent on the subject of true threats, declined to answer the constitutional question, instead relying again on principles of statutory interpretation to read a subjective-intent requirement into the general federal threat statute, 18 U.S.C. [section] 875(c). (25)

      Elonis was convicted under [section] 875(c) for posting "graphically violent" rap lyrics on a Facebook page, first under his real name and then using a pen name. (26) While some of the lyrics Elonis posted referred to clearly fictitious people and situations, others referenced his coworkers and "included crude, degrading, and violent material about his soon-to-be ex-wife," and caused the people referenced to fear for their safety. (27) The district court rejected Elonis's request for a jury instruction that a conviction required proof of Elonis's "inten[t] to communicate a true threat," a question raised by Elonis's testimony that his lyrics were fictitious--like those of the rapper Eminem, who has never been prosecuted for recording songs with lyrics that included specific "fantasies of killing his ex-wife." (28) The jury was instead instructed to convict Elonis if a reasonable person would foresee that the lyrics...

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