Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.
Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten.
Lower court opinion: United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013)
This significant First Amendment case will resolve a conflict that has developed in federal and state courts about the “true threats” doctrine. Up until Black, it was accepted that the test for whether speech was a “true threat,” and thus not protected by the First Amendment, was an objective one—namely, whether a reasonable person would foresee that the statement would be interpreted by those who heard or read the statement as a serious expression of intent to inflict bodily harm. See, e.g., Elonis, 730 F.3d at 327-28. As the first Question Presented makes evident, after Black, a minority of courts have concluded speech is an unprotected true threat only if the speaker subjectively intended the speech as a threat. See also id. at 330-32 (citing federal circuit court decisions). Citing this line of cases, Elonis, who was prosecuted under 18 U.S.C. § 875(c) for “transmit[ting] in interstate or foreign commerce any communication containing … any threat to injure the person of another,” requested an instruction telling the jury the government must prove he intended to communicate a true threat, but the trial and appellate courts rejected his argument based on circuit precedent that adopted the majority view imposing an objective test.
Wisconsin’s primary authority on “true threats” is State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, which adopted the objective test, though it did so before Black was decided. Since Black, the court of appeals has stuck to the majority position, e.g., State v. Robert T., 2008 WI App 22, 307 Wis. 2d 488, 746 N.W.2d 564. Indeed, just last month, in State v. Maier, 2013AP1391-CR (Wis. Ct. App. May 8, 2014), an unpublished opinion we noted here, the court of appeals relied on the Third Circuit’s opinion in Elonis to reject the argument of a defendant charged with stalking that Black requires the speaker have a subjective intent to threaten a particular person or group of persons. Our post also pointed out that the Supreme Court itself hasn’t weighed in on the issue, and to that extent the issue remains arguable. Since the Court is now poised to address the issue next Term, preserve those true threats issues if you’ve got them. (Looking for resources for making your argument? Elonis’s cert petition is a great place to start.)
A final point: The second Question Presented was added by the Court. Clearly, if the statute requires subjective intent, then Elonis was entitled to his requested instruction and the Court can avoid the constitutional question. It’s way too early to say whether that’s likely to happen, so it’s still worth preserving any true threat issues while this case is pending.