Third Circuit Keeps Objective Standard to Weigh Facebook Threats

The understanding of the speech as a threat to a reasonable person is to be weighed, rather than the intent of the speaker to threaten, under the Third Circuit's standard.

Anthony Douglas Elonis, who threatened his estranged wife, former co-workers and police through posts on his Facebook page, had challenged his conviction, arguing that the U.S. Supreme Court's decision in Virginia v. Black, 538 U.S. 343 (2003) would change the Third Circuit's stan- dard for weighing threats from one that considers how language is perceived to one that considers how the speaker intended it to be perceived.

“Limiting the definition of true threats to only those statements where the speaker subjectively intended to threaten would fail to protect individuals from 'the fear of violence' and the 'disruption that fear engenders,' because it would protect speech that a reasonable speaker would understand to be threatening,” Senior Judge Anthony J. Scirica wrote on behalf of the three-judge panel, quoting from Black, which outlined the High Court's reasoning in carving out the initial true-threat exception to the First Amendment.

The Supreme Court established the exception in 1969 with its ruling in Watts v. United States, 394 U.S. 705 (1969), which involved what it decided was political speech when a man at an anti-war rally told the crowd, “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.”

The Court didn't revisit the exception until it ruled in Black.

In that opinion, the Court lays out the exception as encompassing “those 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.”

Elonis argued that definition would mean that the speaker must intend to threaten the victim through his language.

“We do not infer from the use of the term 'intent' that the [C]ourt invalidated the objective-intent standard the majority of circuits applied to true threats,” Scirica said. “Instead, we read 'statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence' to mean that the speaker must intend to make the communication.

“It would require adding language the [C]ourt did not write to read the passage as 'statements where the speaker means to communicate [and intends the statement to be understood as] a serious expression of an intent to commit an act of unlawful violence.'

“This is not what the court wrote, and it is inconsistent with the logic animating the true-threats exception,” Scirica said.

The Ninth Circuit is the only one to have decided otherwise, holding: “The true-threats definition in Black requires the speaker both intend to communicate and 'intend for his language to threaten the victim,'” Scirica said, quoting from the Ninth Circuit's 2005 opinion in United States v. Cassel, No. 03-10683.

Headed to the High Court?

Of the possibility that the Supreme Court might take up the issue, Robert Zauzmer, of the U.S. Attorney's Office for the Eastern District of Pennsylvania who argued the government's case in Elonis, noted that although the “strong majority” of the circuits agree with the Third Circuit, but there is a split.

Ronald Levine of Post & Schell, who represented Elonis, says that they are reviewing the court's opinion and will consult with Elonis before deciding on what the next step will be.

Zauzmer says he was “pleased with the decision” with regard to the intent requirement as well as the court's extension of its standard that Internet communications necessarily implicate interstate commerce.

In the Third Circuit's 2006 opinion in United States v. MacEwan, which dealt with a child pornography statute, “we concluded that because of the very interstate nature of the Internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to the user, the data has traveled in interstate commerce,” Scirica said in Elonis , citing the court's earlier opinion.

The three-judge panel of the Third Circuit, which included Judge Thomas M. Hardiman and Senior Judge Ruggero J. Aldisert, decided: “Based on our conclusion that proving Internet transmission alone is sufficient to prove transmission through interstate commerce, the district court did not err in instructing the jury” that way.

Saranac Hale Spencer writes for The Legal Intelligencer, an ALM affiliate of Internet Law & Strategy. She can be reached at [email protected]. Follow her on Twitter @SSpencerTLI.

Prompted by a case involving threats made on Facebook, the Third Circuit has ruled the objective-intent standard for assessing threats still stands.

The U.S. Court of Appeals for the Third Circuit followed the lead of most circuits that have ruled on the issue ' with the exception of the Ninth Circuit ' declining to interpret a 2003 opinion from the U.S. Supreme Court as requiring subjective intent from the speaker in order to trigger the true-threat exception to the First Amendment's protection of speech. United States v. Elonis, No. 12-3798 (3rd Cir. Sept. 19, 2013).

Defining 'Threat'

The understanding of the speech as a threat to a reasonable person is to be weighed, rather than the intent of the speaker to threaten, under the Third Circuit's standard.

Anthony Douglas Elonis, who threatened his estranged wife, former co-workers and police through posts on his Facebook page, had challenged his conviction, arguing that the U.S. Supreme Court's decision in Virginia v. Black, 538 U.S. 343 (2003) would change the Third Circuit's stan- dard for weighing threats from one that considers how language is perceived to one that considers how the speaker intended it to be perceived.

“Limiting the definition of true threats to only those statements where the speaker subjectively intended to threaten would fail to protect individuals from 'the fear of violence' and the 'disruption that fear engenders,' because it would protect speech that a reasonable speaker would understand to be threatening,” Senior Judge Anthony J. Scirica wrote on behalf of the three-judge panel, quoting from Black, which outlined the High Court's reasoning in carving out the initial true-threat exception to the First Amendment.

The Supreme Court established the exception in 1969 with its ruling in Watts v. United States, 394 U.S. 705 (1969), which involved what it decided was political speech when a man at an anti-war rally told the crowd, “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.”

The Court didn't revisit the exception until it ruled in Black.

In that opinion, the Court lays out the exception as encompassing “those 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.”

Elonis argued that definition would mean that the speaker must intend to threaten the victim through his language.

“We do not infer from the use of the term 'intent' that the [C]ourt invalidated the objective-intent standard the majority of circuits applied to true threats,” Scirica said. “Instead, we read 'statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence' to mean that the speaker must intend to make the communication.

“It would require adding language the [C]ourt did not write to read the passage as 'statements where the speaker means to communicate [and intends the statement to be understood as] a serious expression of an intent to commit an act of unlawful violence.'

“This is not what the court wrote, and it is inconsistent with the logic animating the true-threats exception,” Scirica said.

The Ninth Circuit is the only one to have decided otherwise, holding: “The true-threats definition in Black requires the speaker both intend to communicate and 'intend for his language to threaten the victim,'” Scirica said, quoting from the Ninth Circuit's 2005 opinion in United States v. Cassel, No. 03-10683.

Headed to the High Court?

Of the possibility that the Supreme Court might take up the issue, Robert Zauzmer, of the U.S. Attorney's Office for the Eastern District of Pennsylvania who argued the government's case in Elonis, noted that although the “strong majority” of the circuits agree with the Third Circuit, but there is a split.

Ronald Levine of Post & Schell, who represented Elonis, says that they are reviewing the court's opinion and will consult with Elonis before deciding on what the next step will be.

Zauzmer says he was “pleased with the decision” with regard to the intent requirement as well as the court's extension of its standard that Internet communications necessarily implicate interstate commerce.

In the Third Circuit's 2006 opinion in United States v. MacEwan, which dealt with a child pornography statute, “we concluded that because of the very interstate nature of the Internet, once a user submits a connection request to a website server or an image is transmitted from the website server back to the user, the data has traveled in interstate commerce,” Scirica said in Elonis , citing the court's earlier opinion.

The three-judge panel of the Third Circuit, which included Judge Thomas M. Hardiman and Senior Judge Ruggero J. Aldisert, decided: “Based on our conclusion that proving Internet transmission alone is sufficient to prove transmission through interstate commerce, the district court did not err in instructing the jury” that way.

Saranac Hale Spencer writes for The Legal Intelligencer, an ALM affiliate of Internet Law & Strategy. She can be reached at [email protected]. Follow her on Twitter @SSpencerTLI.