In overturning the conviction of a man who posted violent "rap lyrics" about his estranged wife and others on Facebook, the Supreme Court on Monday rightly made it harder to criminalize hateful speech. But the decision stopped short of requiring that prosecutors prove that a defendant intended to make a threat before he or she can be punished, and it failed to enunciate a clear standard for determining when speech crosses the line into criminality.
Like many protagonists in free-speech cases, Anthony D. Elonis is a repellent figure. After his wife left him, Elonis wrote: "If I only knew then what I know now, I would have smothered [you] with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and murder." When his wife obtained a Protection From Abuse order, he posted this on Facebook: "Fold up your PFA and put it in your pocket / Is it thick enough to stop a bullet?"
Elonis insisted that his rants were "therapeutic" and not threats to commit violence. Nevertheless, he was convicted after the jury was instructed that he could be found guilty if a reasonable person would foresee that his statements would be interpreted as threats by those to whom they were directed.
Writing for the majority, Chief Justice John G. Roberts Jr. said that the "reasonable person" standard was faulty because it didn't take into account Elonis' mental state. Wrongdoing, Roberts wrote, "must be conscious to be criminal." That's an important principle and the court was right to insist on it.
But the majority wasn't completely clear about what mental state is required for someone to be convicted of making a threat. Roberts rejected an argument by Elonis' lawyers that a speaker must subjectively intend to make a threat in order to be punished; it was enough, the chief justice said, if prosecutors could prove that the defendant had "knowledge" that his statements would be perceived as a threat.
But Roberts declined to say whether a speaker could also be punished for "reckless" utterances that he should have known would be perceived as a threat. The result of that equivocation, Justice Samuel A. Alito Jr. complained in a separate opinion, is that lower courts lack guidance, meaning that some defendants who should be convicted of making threats might go free, and some who are innocent will be convicted.
The Internet is awash with abusive and violent comments. The court should have given clearer direction about which of those ugly utterances can be prosecuted in a court of law.