Washington—Senators Dianne Feinstein (D-Calif.), Dick Durbin (D-Ill.), Sheldon Whitehouse (D-R.I.) and Amy Klobuchar (D-Minn.) introduced legislation in response to the Supreme Court’s decision in Elonis v. United States to clarify the “level of intent” required for a jury to convict an individual of threatening to injure, kill or kidnap another individual. With the proliferation of online communications platforms and the Court’s ruling in Elonis, the statute requires an update.
In Elonis v. United States, the Court overturned Anthony Elonis’ conviction for threats made against his wife, co-workers, law enforcement and schoolchildren in violation of Section 875(c) of Title 18 of the federal code, which prohibits “any communication containing any threat to kidnap any person or any threat to injure the person of another.”
Elonis posted a number of threats on Facebook. After his wife filed for a restraining order, he threatened to shoot her. He subsequently described slitting an FBI agent’s throat following a visit from law enforcement and shooting a classroom of kindergarteners.
Elonis argued that the threats should not have been taken seriously because he indicated that they were song lyrics and he was exercising his free speech rights. The Court overturned the conviction because the jury in the case did not consider whether Elonis had the requisite wrongful criminal intent. However, the Court’s decision did not specify the level of intent required to sustain a conviction under the statute.
Under the legislation, the government would be required to prove that a defendant intended, had knowledge of or recklessly disregarded the risk that the communication would be reasonably interpreted as a threat.
“With just a few clicks, individuals today can use social media platforms to widely broadcast a threat to kill someone. These threats should be taken seriously by law enforcement,” said Senator Feinstein. “Our bill would make it clear that someone who threatens to kill his wife or shoot a classroom of kindergarteners is responsible for those words and can be held accountable.”
“If a criminal offense has an unclear intent requirement, Congress should respond with a bill like the Interstate Threats Clarification Act, which I’m proud to cosponsor,” said Senator Durbin. “This bill will establish an explicit intent requirement for the federal threats statute, eliminating ambiguities that make it harder for prosecutors, victims, and defendants alike to know what conduct is criminal. This is a sharp contrast to so-called ‘mens rea reform,’ which would establish a sweeping default criminal intent that would apply across the criminal code and make it much harder to prosecute white collar or violent criminals.”
“This bill will ensure that prosecutors can continue to charge and convict those who use the Internet to threaten the lives of others” said Senator Whitehouse. “Criminals who abuse the Internet to terrorize innocent people must be held accountable.”
The bill has been endorsed by the American Association of University Women, National Alliance to End Sexual Violence, National Center for Victims of Crime, National Coalition Against Domestic Violence, National Network to End Domestic Violence, National Domestic Violence Hotline, Domestic Violence Legal Empowerment and Appeals Project, Futures Without Violence, Jewish Women International, Legal Momentum, National Resource Center on Domestic Violence, Fraternal Order of Police, Major Cities Chiefs Association, Federal Law Enforcement Officers Associations, and the National District Attorneys Association.