If you’re charged with threatening someone online, does it matter if you don’t “mean it?”

The Supreme Court recently decided the case United States v Elonis. The case has been written up in Slate, the New York Times, and other publications.

The central issue in the case was whether the federal crime of using interstate commerce to transmit “any communication containing any threat . . . to injure the person of another” requires that the Defendant actually intend to threaten the recipient. That is, must a Defendant “mean it” when he makes a threat.

The facts here are interesting.

Defendant Anthony Elonis is an aspiring rapper, who evidently likes Eminem. He calls himself “Tone Dougie” and changed his Facebook name to “Tone Dougie.” He posted to his own Facebook page rap lyrics about his ex-wife and others. By any standard, the lyrics were offensive.

He talked about his ex-wife–saying that while it was illegal for him to say he wanted to kill his ex-wife, it was legal for him to talk about how others could kill his ex-wife and get away with it. He posted lyrics about committing a school shooting. He also posted about free speech the First Amendment.

The government indicted him. He was convicted at a jury trial. Interestingly, the prosecution argued that it didn’t matter whether Elonis actually intended to threaten anyone. In their closing argument, they said “It doesn’t matter what he thinks.” Instead, all that mattered was whether a reasonable person would have understood the lyrics as a threat.

The Supreme Court disagreed, and vacated the conviction. The Court held that the prosecution must prove that the Defendant has some mental state–that he actually intended to threaten the recipient, that he recklessly made the threats, or that he negligently made the threats. The actual mental state is not spelled out by the Court.

What does this mean for Wyoming?

It will be interesting to see whether this case affects much in Wyoming.

The closest Wyoming statute is probably the stalking statute, W.S. 6-2-506, and its definition of harassment. Under that statute,

“Harass” means to engage in a course of conduct, including but not limited to verbal threats, written threats, lewd or obscene statements or images, vandalism or nonconsensual physical contact, directed at a specific person or the family of a specific person, which the defendant knew or should have known would cause a reasonable person to suffer substantial emotional distress, and which does in fact seriously alarm the person toward whom it is directed.

So the Wyoming statute already requires that the Defendant knows or should know that his actions cause a reasonable person to suffer substantial emotional distress. This means Wyoming’s statute already satisfies the Constitution.

Where it may affect other cases is instances where the prosecution argues that they do not need to prove the Defendant’s mental state. If that situation arises, this case should make the Court and prosecution think twice.

Photo: Flickr

Alex FreeburgIf you’re charged with threatening someone online, does it matter if you don’t “mean it?”