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The court, in an opinion by Chief Justice John Roberts, held that the federal criminal law banning “threats” in interstate communication requires more than proof that a “reasonable person” would have viewed the communication as a threat for a conviction, known as a negligence standard.
The decision avoided constitutional questions about whether the First Amendment barred a conviction under the threats statute if only negligence was required for such a conviction.
Elonis had posted a series of posts on Facebook, having adopted an “on-line persona” of “Tone Dougie,” posting what Roberts characterized as “crude, degrading, and violent material about his soon-to-be ex-wife.”
The government had argued that if a reasonable person understood those as threats it should suffice for a conviction under the law, but Roberts, writing for the court, held that the law requires more. Specifically, he wrote that whatever greater mental requirement is required “must therefore apply to the fact that the communication contains a threat.”
The court did not, however, resolve what that greater mental requirement was — a move that irked Justices Samuel Alito and Clarence Thomas. Alito, at one point, wrote that the decision “is certain to cause confusion and serious problems.”
Alito wrote that the standard should be that a conviction is possible if the person “consciously disregards the risk that the communication transmitted will be interpreted as a true threat,” known as a recklessness standard.
Roberts, however, countered that the court resolved the issue before it — that the negligence standard is insufficient — and that other matters would have to be resolved at other times. He noted that everyone agrees that a conviction is possible if the person’s purpose was to make a threat or if the person had knowledge it would be viewed as a threat. The unanswered question, Roberts acknowledged, was whether recklessness would be enough..........................
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