Having just reversed the Third Circuit on a criminal conviction arising from an ugly romantic break-up, yesterday Scotus granted cert to review another one. Virginia is for lovers, but Pennsylvania is for menacing, but perhaps not federally criminal, ex-lovers.
The case is US v. Elonis. The CA3 opinion upholding the conviction is here: Scirica was the author, joined by Hardiman and Aldisert. CA3 oral argument audio here. Elonis was represented in CA3 and on cert by Ronald Levine and Abraham Rein of Post & Schell. They were joined on the cert petition by Vinson & Elkins and the UVa Scotus clinic.
The question presented is whether subjective intent to threaten is required by either the First Amendment or the criminal statute. After Elonis’s wife left him, he made a series of posts on Facebook, including this (excerpted):
Did you know that it’s illegal for me to say I
want to kill my wife?
It’s illegal.
It’s indirect criminal contempt.
It’s one of the only sentences that I’m not
allowed to say.
Now it was okay for me to say it right then
because I was just telling you that it’s illegal for
me to say I want to kill my wife.
I’m not actually saying it.
I’m just letting you know that it’s illegal for me
to say that.
It’s kind of like a public service.
Now the Supreme Court will decide whether that was “okay.”
For more, here are some links:
I haven’t made any deep study of the case, but here’s my casual opinion. Requiring subjective intent to threaten makes sense to me, although I think CA3 was correct to leave it for Scotus to say that. But intent to threaten isn’t the same as intent to carry out the threats, and I’d think the evidence against Mr. Elonis is sufficient –easily sufficient — to find intent to threaten and uphold the conviction.