At oral argument in the Supreme Court on December 1, 2014, counsel for Anthony Elonis, the disgruntled ex-husband convicted of posting threatening language on his Facebook page, illustrated the danger in the “reasonable person” standard used to convict Mr. Elonis with a telling hypothetical: imagine a Ferguson protester after the grand jury’s decision not to indict Michael Brown tweeting a photo of a police officer in riot gear with a caption quoting Thomas Jefferson: “the tree of liberty must be refreshed with the blood of tyrants.” Under the government’s reasoning, if a reasonable person could view the tweet as constituting a threat, the sender of the tweet could be prosecuted for communicating a “true threat.”
This hypothetical, as counsel almost certainly knew, but did not say, evoked an earlier “true threats” case the Supreme Court had decided not to review. In this earlier case, a radical right wing blogger, Henry Turner, had published a violent post on his website directed at 7th Circuit Judges Richard Posner, Frank Easterbrook and William Bauer following a decision perceived as insufficiently protective of Second Amendment rights. In his post, Turner admonished the judges to “Obey the Constitution or Die,” stated that the judges had not “got the hint” sent by another gunman who had murdered the husband and mother of a federal district court judge and concluded with the same Jeffersonian dictum that “the tree of liberty must be refreshed with the blood of tyrants.”
No doubt in part because of this earlier precedent, Justice Scalia sarcastically responsed to Elonis’ counsel’s hypothetical with a stinging: “this is valuable First Amendment language that you think has to be protected?”
Before answering Justice Scalia, it is necessary to back up a bit. What exactly is a “true threat?” Under the Supreme Court’s decision in Virginia v. Black, 538 U.S. 343 (2003), “true threats” encompass 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.” Such threats are distinguished, in particular, from “political hyperbole” of the kind earlier found to be protected under the First Amendment in the case of Watts v. U.S., 394 U.S. 705, 706 (1969). In Watts, a black man speaking out at a public rally against police brutality had been convicted for saying: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.” In reversing the conviction, the Supreme Court stated:
“The statute [under which Watts was convicted] initially requires the Government to prove a true ‘threat.’ We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The language of the political arena . . . is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was ‘a kind of very crude offensive method of stating a political opposition to the President.” [Internal quotations omitted]
Finding the line between protected speech in a “vituperative and abusive” political arena and an unprotected “intent to commit an act of unlawful violence to a particular individual or group of individuals” is extremely difficult. Virginia v. Black itself turned on the distinction between white supremacist cross-burning intended to intimidate African-Americans (and thus unprotected) and cross-burning intended to communicate an idea about the racial superiority of whites (and thus protected).
In reflecting on this line, it is instructive to consider the differing treatment of the Holocaust in the United States and most European countries. In most European countries, for example, denying the Holocaust is itself a crime. In the United States, in contrast, no matter how much pain the publication of anti-Semitic literature denying the Holocaust may cause, such speech would still be considered “core” speech entitled to First Amendment protection. Why? There are two essential reasons for the protection of hateful, harmful, even violent ideas in the Anglo-Saxon political tradition. The first, somewhat misleadingly identified with the “marketplace of ideas” metaphor popularized by John Stuart Mill, is that the pursuit of truth is sharpened by its clash with error. However painful it may be to tolerate the odious views of those who deny the Holocaust, or even of those why sympathize with Nazism, the Anglo-Saxon theory is that the open clash with such odious ideas enables us to better understand and more effectively combat them. The second reason, related to the first but ultimately drawing upon a transcendental religious vision rather than utilitarian pragmatism, is that prohibiting hateful ideas is a betrayal of our faith in Truth, a faith that is the precondition for individual and societal virtue (in the sense of both goodness and ultimate worth). Milton’s famous lines “and though all the winds of doctrine were to be let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength” are animated by the rejection of a “cloistered virtue” and a desire to foster “a nation not slow and dull, but of a quick, ingenious and piercing spirit, acute to invent, subtle and sinewy to discourse, not beneath the reaches of any point the highest that human capacity can soar to.”
Considered in this light, Scalia’s dismissive question “this is valuable First Amendment language you think has to be protected?” calls out for a “yes.” Without a narrow and circumscribed approach to hateful, even threatening, language, speech that is nonetheless vital in the Milton/Mill tradition might be chilled and driven underground, depriving us of the opportunity to defeat it in an open clash of ideas. There is no soil more fertile for the ideas we loathe than the one we cannot see.
The issue in the Facebook “true threats” case thus takes on its full importance. The technical issue in the case is whether threats to injure another require a “general” or a “specific” intent–whether the mere intent to utter words a reasonable person would know to be threatening suffices for punishment (general intent) or whether the government must prove, in addition, that the speaker has an actual intent to cause fear or injury in another, or at an absolute minimum knows that the threatening speech is virtually certain to cause fear of injury in the person to whom it is directed (specific intent).
The first test is essentially a negligence test and defers to that proxy for the commonsense majority, the “reasonable person.” If a reasonable person would be threatened or intimidated by a given statement of series of statements, the speaker can be punished. Yet the reasonable person could easily find that a Ferguson anti-police tweet or the anti-brutality hyperbole at issue in Watts — or anti-Semitic rhetoric or supremacist ideas — reflect an intent to commit an act of unlawful violence. Asking the “reasonable” person with the “reasonable” commonsense values of the majority to protect the truth-sharpening and virtue-enhancing functions of open debate and clash of ideas is not realistic. By adding another layer, requiring that the government undertake the difficult task of bringing forth specific evidence of a speaker’s actual intent to injure another — a difficult, but not impossible, task — courts will add a necessary protection to limit the chilling effect of statutes that could otherwise be construed to silence odious speech that should instead be confronted openly on the “battlefield of ideas.”
A specific intent requirement, on the other hand, while providing a bulwark against the lower negligence standard that could open the door to the chilling effect of the “reasonable person” standard, would also provide sufficient protection against truly dangerous speech. In the Turner case, for example, even though the blogger was convicted under the general intent standard, there was sufficient evidence that Turner actually intended to directly threaten the 7th Circuit judges: in addition to his vituperatuve rant, Turner also posted pictures of and addresses for the Justices and an illustrated diagram of the 7th Circuit courthouse showing the placement of anti-truck bomb barriers. Here, no appeal to the reasonable person is necessary: there was clearly sufficient evidence of Turner’s actual intent to harm, underscored by the actual earlier murder of a District Judge’s husband and mother, to convict Turner even applying a “specific intent” standard.
In fact, a requirement of specific intent — or something very close — runs throughout First Amendment jurisprudence. Liability for defamation or libel of a public figure after New York Times v. Sullivan, 376 U.S. 254 (1964), requires “actual malice”–knowledge of the falsity of the defamatory statements or “reckless disregard” for their truth; in cases involving incitement to unlawful action after Brandenburg v. Ohio, 395 U.S. 444 (1969), the government must show that the defendant’s conduct was directed at producing imminent lawless action and was likely to produce such imminent lawless action; in cases prosecuting individuals for knowing membership in organizations that seek the violent overthrow of the government (Scales v. United States, 367 U.S, 203 (1961) and Noto v. United States, 367 U.S. 290 (1961), the Supreme court has required both “active” affiliation and “specific intent” to carry out the organization’s violent, unlawful objectives. Recognizing a specific intent limitation in the “true threats” cases is thus not only theoretically sound, but consistent with the clear thrust of the Supreme Court’s First Amendment jurisprudence. In the Facebook case itself, there may have been sufficient evidence to establish Elonis’ specific intent to harm his ex-wife, without resorting to the fiction of a “reasonable person.” Adoption of a tougher standard in Elonis would not necessarily translate into insensitivity to the ex-wife’s understandable fears.
But the extra level of protection embodied in a specific intent requirement is necessary to protect the legitimate, even rhetorically violent, expression of outrage from the censure of the average, reasonable person–the very person embodied in the grand juries that chose not to indict the killers of Michael Brown and Eric Garner. It is precisely the uninhibited, unbridled expression of outrage that, over time, may shape a new and different consensus and thus constitutes the invaluable First Amendment speech we must protect.