The Supreme Court On Criminal Intent; Or, The Rise And Fall Of Tone Dougie

This has been a good term for Supreme Court cases on how broadly or narrowly to interpret federal criminal laws. First, there was “One Fish, Two Fish” Yates. This week, there’s Elonis v. United States.

Elonis is the Facebook threats case. While most of the attention has gone to the Facebook part of the case, it’s actually a great opinion on how and why courts should read criminal statutes narrowly.

Here’s what happened in the case: Anthony Elonis was going through a rough patch in life. His wife had left him, taking their kids. This affected him deeply.

People deal with the break-up of a marriage differently. Some find another love. Some compulsively Google old flames. Others turn to alcohol, or Crossfit, or religion. Elonis took the road less traveled; he created a violent rap-inspired alter ego and posted violent messages directed at others on Facebook under that new alter ego’s name.

That name was Tone Dougie.

Elonis, around this time, held a fake knife to his co-worker’s throat at a Halloween party in a picture. Tone Dougie posted it on Facebook with the caption “I wish.” His boss saw the post and fired him. There was a fair bit of stuff like that. (for more of it, the opinion has a nice description)

He also wrote Facebook posts about being violent toward his wife and, after she got a protective order from him based on those posts, about the limits of the effectiveness of a civil protective order. Here’s a sample Tone Dougie:

“Fold up your [protection-from-abuse order] and put it in your pocket

Is it thick enough to stop a bullet?

Try to enforce an Order

that was improperly granted in the first place

Me thinks the Judge needs an education

on true threat jurisprudence

And prison time’ll add zeros to my settlement . . .

And if worse comes to worse I’ve got enough explosives

to take care of the State Police and the Sheriff ’s De­partment.”

As it happens, the judge who issued the protective order was not the only one who got an education in true threat jurisprudence — we all did, when the Supreme Court decided Elonis’s case.

Thank you, Tone Dougie, for your role in the development of American constitutional law.

(though, of course, the standard for when something is a true threat for criminal law purposes could reasonably be different than for purposes of a civil protective order, which is what the Dougster was talking about, but the whole thing was educational nonetheless)

In any event, the interesting question for criminal law purposes turns on Elonis’s mental state — is what matters that Elonis knows what Dougie is posting, or does the government also have to show that he knows that what he’s posting is threatening?

The government likes the first reading — it’s easier to show someone is a criminal if you only need to show that they know what they’re doing, not that they also know that it’s wrong. The Court rejected that:

[The statute] requires proof that a communi­cation was transmitted and that it contained a threat. The “presumption in favor of a scienter requirement should apply to each of the statutory elements that crimi­nalize otherwise innocent conduct.”

But, that’s tricky here. Elonis, or, at least, Tone Dougie, thought, perhaps, that what he posted wouldn’t be taken as a threat — it was just Tone bein’ Tone. He was just expressing himself.

Put another way:

Elonis’s conviction . . . was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct — awareness of some wrongdoing.” Having liability turn on whether a “reasonable person” regards the communication as a threat — regardless of what the defendant thinks — “reduces culpability on the all-important element of the crime to negligence. (citation omitted)

As a result, a reasonable person standard is not sufficient to tag a person with criminal liability under the federal interstate threats statute.

It’s a narrowing of the statute relative to the government’s reading, to be sure. And Elonis’s conviction was overturned.

But the issue is important beyond this case. Is what matters that you knew what you were doing regardless of whether you also knew it was wrong, or is what matters that you knew what you were doing and you knew it was wrong — or criminal?

And here things get a little murky. We’ve all heard that “ignorance of the law is not a defense” (except in a criminal tax evasion case, sort of). But ignorance of wrongful conduct, under Elonis (and the cases relied on in the opinion), is. I think that’s good — you should know you’re over the line before you’re able to be sent to prison. But who decides or defines what counts as “wrongful”? Is it just a sense of what a reasonable person ought to think is wrongful?

Because, if so, aren’t we back in a negligence land, or it’s close cousin?

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Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.