When is a Facebook threat a “threat”?

Irony can be pretty ironicOn Monday this week the U.S. Supreme Court came down with their decision in the case of Elonis v. United States, which is all about a terrible rap lyricist threatening to kill or hurt a bunch of people on Facebook. Let’s take a look at the decision and see if it has any implications for Canada (spoiler alert – it does not! It’s U.S. law!).

The decision is all sorts of fun / disturbing to read if only for the terrible rap lyrics such as the following:

So the next time you knock, you best be serving a warrant
And bring yo’ SWAT and an explosives expert while you’re at it
Cause little did y’all know, I was strapped wit’ a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus’ waitin’ for y’all to handcuff me and pat me down
Touch the detonator in my pocket and we’re all goin’

So this is the type of stuff that got Elonis convicted of the crime of (roughly) transmitting a threat. The law comes from 18 U.S. Code § 875 – Interstate communications, section (c) which states:

Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

In May of 2010, Elonis’ wife left him, taking their two kids with her. Elonis changed his Facebook profile name to the rapper-style “Tone Dougie” (his middle name is Douglas) and went on all sorts of rants and wrote rap lyrics. Through all of this, it looked like he was threatening to kill and / or cause bodily harm to his wife, FBI agents, park employees and patrons, and even a kindergarten class. Yeesh, dude. That’s a little much.

The judge at trial, when instructing the jury, said that Elonis could be convicted if a “reasonable person” would conclude that his words were a threat. The Court of Appeals said the same thing. Elonis, for his part, said that they had to show that he himself intended for the words to be a threat. And Elonis said he did not, he was just venting. That’s some venting! The Supreme Court had to decide what was the correct standard. The problem is that the statute really doesn’t say one way or the other.

Chief Justice Roberts, writing for 7 of the 9 justices, said that even if a statute is silent on a mental state or criminal intent requirement, it doesn’t mean there isn’t one. We judges add stuff to the law all the time! The “mental state” or intent requirement is called in criminal law the mens rea. Add this to the “physical act” requirement – called the actus reus – and you’ve got a convicted criminal that now needs to understand the sentencing ranges they could be applicable towards. Congrats, you just passed Crim Law 101. I give you this explanation so you can understand what Justice Roberts says here:

When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute “only that mens rea which is necessary to separate wrongful conduct from ‘otherwise innocent conduct’.”

So what is the mens rea for this crime? Justice Roberts has some issues with the reasonable person business:

Elonis’s conviction, however, 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.

He then spends some time saying how the government lawyers were wrong, and thus concludes:

In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.

So negligence, which is the fancy way of saying the reasonable person standard, is not enough to convict for this crime. What about “recklessness”, which is a step above negligence in the mens rea hierarchy? The Court doesn’t say squat, because that wasn’t really an issue at the lower courts. Lazy Supreme Court! What about the freedom of speech First Amendment issues that everyone thinks should be a topic of discussion in a case like this?

Given our disposition, it is not necessary to consider any First Amendment issues.

Personally, I think this decision is useless.

Ultimately, there is no denying that making threats online can certainly be seen as an example of extortion from a criminal law perspective. In case you were not already aware, extortion is the wrongful use of actual or threatened force, violence or intimidation to gain money or property from an individual or entity. Extortion generally involves a threat being made to the victim’s person or property, or to their family or friends.

Consequently, under both state and federal law, an extortion conviction is a felony that can result in a prison sentence, fines, as well as a ruined personal and professional reputation. That being said, sometimes people are investigated or charged with extortion based on exaggerations or statements that are taken out of context. Accordingly, if you are under investigation for extortion, it is important to obtain experienced legal counsel to present your best defenses to the potential charges. You can learn more about some of the legal defenses to allegations of extortion by contacting a team of bucks county criminal lawyers, or a team of criminal law experts in your area.

Superterriffic Happy Hour Funtime Analysis

Anyway, like I said, this decision is useless. even for Americans! What should have been an Earth-shattering case about freedom of speech on the internet and legal requirements for internet threats was decided on a very limited basis, with virtually no guidelines for the future. If you don’t believe me, believe SCOTUSblog, the second-coolest legal blog on the internet. In a post about the decision entitled Opinion analysis: Internet threats still in legal limbo?, they write:

Future prosecutions under the 1939 law prohibiting the communication of threats – including cases, like this one, involving digital-age expression – no doubt will move forward. But they likely will be surrounded by questions left unanswered by the decision. Such questions include what evidence prosecutors must offer, and what impact, if any, the First Amendment guarantee of free speech would have.

Yeah, let’s move on.

Canada, eh?

So what about Canada? Does this decision help us in any way? No of course not. It barely helps Americans. But this is a good opportunity to talk about the criminality of internet threats in Canada, so let’s do that!

As usual, let’s start with the, uh, law. In Canada, we have a crime in the Criminal Code called “Uttering threats“. It reads as follows:

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person.

So the first question you are asking, because you are smart, is “if I write something on the internet, is that ‘uttering'”? Yes it is! Note the word “conveys” in that first paragraph – that would probably apply to writing on the internet. And in fact the word “uttering” in the common law back in the day meant “publishing”, not the average meaning of uttering (speaking aloud) we have today. Point is, it applies to written threats on the internet. Trust me.

Now, if you are really smart, you would have noticed the word “knowingly” in that first paragraph. Remember all that mens rea stuff we just talked about in the U.S. case, that was the basis for that decision? Well, here it is. In our statute, we actually have the mens rea in the statute, unlike in the U.S. “Knowingly” is more than just negligence, so the U.S. case would never even have gotten to our Supreme Court. So, uh, yay us?

Now, how should a court decide if this mens rea standard is met here? In one of the most recent pronouncement from the Supreme Court of Canada on the topic, R. v. O’Brien in 2013, the Court cited some juicy stuff from the leading case on uttering threats, R. v. Clemente:

The mens rea is that the words be spoken or written as a threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously

Now how would you determine that someone intended to intimidate or have their threats taken seriously? Context and circumstances; again from the Clemente case:

. . . the question of whether the accused had the intent to intimidate, or that his words were meant to be taken seriously will, in the absence of any explanation by the accused, usually be determined by the words used, the context in which they were spoken, and the person to whom they were directed.

This is all pretty clear so far, right? Right? Just to add some more detail, the Supreme Court clarified a couple of other points about uttering threats in R. v. McRae, also from 2013. The Court said that the “recipient” of the threat does not actually have to be intimidated by a threat for it to be a threat. Furthermore, uttering threats does not require proof that the accused’s threats were actually conveyed to their subject, or that the accused even intended that the threats be conveyed to their subject. That’s going to be important for social media threats where people spout off all the time at individuals knowing they probably never even see it.

So how would this play out on Facebook or other internet situations? There are not a lot of cases, but there are a few. An interesting one is R. v. Lee. In that case, Lee seemed to be a bit of a nutcase. His Facebook page “included images of swastikas, a single reference to the Virginia Tech massacre and anti-Semitic comments.” Then one day he posted the following:

I’m wearing black and I’m riding black this time around…I’m really sorry however you never thought this day would come, and didn’t want it to be this way… I never knew why you would frame me nor put me on the cross for a few dollars… but I don’t care, if you are a priest, judge, cop, lawyer, commoner, or teacher… I’m bringing death with me this time around.

Some people, right? Who wants to kill lawyers? Wait, don’t answer that. Anyway, he was charged with uttering threats, and the judge in the case knows the law, and basically sums up our two quotes above from the Clemente case:

In order to find Mr. Lee guilty, I must be convinced beyond a reasonable doubt that when he wrote these words he did so with an intent to intimidate and/or cause fear. … I must take into account the words that were used, the context they were used in, the person(s) to whom they were directed and the explanation offered by Mr. Lee.

The explanation from Mr. Lee was that he was disturbed! He had worked as a coroner during the H1N1 outbreak and his job was to transport dead bodies, and this had a huge impact on him. The Court noted he wrote about death and depressing stuff all the time on his Facebook page. He always said what colour of clothes he wore. He also did not threaten any particular person and the posts were only intended to be seen by his “friends”. As a result, because of this context, he was found not guilty.

In R v. Sather, we have less of a nutcase. We have a guy whose newborn baby was taken away from him and his wife by the Children’s Aid Society (CAS) because a nurse and doctor told CAS they thought they would be unfit parents (ok so maybe a bit of a nutcase). Sather then took to Facebook, posting things such as:

when I find out what nurse called CAS may god have murcey on my soul cause I’m going straight to hell with a 25 yr pit stop in prison

Dan is sick of all this and in the midst of planning a tacticle strike to get kyle back and disappearing off the face of the earth

That’s all sic‘d, btw. Crazy people can’t spell. Anyway, the Court cites Clemente again, and finds him not guilty because of the context. The rants were only for his friends, and Sather said he was just blowing off steam. The Court noted that Sather spoke to CAS people in person numerous times, and was always polite and never threatening. So his Facebook posts were just some sort of “alternate persona” and were not really designed to instill fear in CAS employees, or to use the Clemente language, were not “meant to intimidate or to be taken seriously.”

It’s not just Facebook; you can threaten (allegedly) on Twitter too! In R. v. Le Seelleur from December of last year, a Quebec court got to look at a Twitter threat. Let the Court explain the facts:

Upon reading a CTV article which was entitled “Pauline Marois ready to call an election“, [the accused] reposted the article in question through her Twitter account with the following comment of her own: “Good get the bitch out of there before I bomb her“.

Look, many of us hated Pauline Marois, but that’s over the line! The accused was charged with uttering threats, and the Court asks the question you know by now – were the threats “meant to intimidate or to be taken seriously”? This time, the Court said yes! Even though the accused said she wrote it on the spur of the moment, even though she said she was remorseful about the Tweet, even though she said she only intended the Tweet to be seen by her 100 or so followers (irrelevant! Remember McRae), even though the Court seems to think she is a good person, at the time of the Tweet she intended it to be taken seriously:

after considering all the evidence, including the testimony of the accused, the Court is convinced beyond a reasonable doubt that at the precise moment the message was posted, the accused – who was angry and frustrated at the Prime Minister – had the requisite intention to be taken seriously. Her ensuing regrets, which are without a doubt genuine and sincere, do not set aside her state of mind at the time of the commission of the offence.

Fascinating! I’ll mention one other case, just for completeness’ sake, R. v. Lafortune. It has crazy facts starting with a YouTube video and ending in arson of a Kia dealership. Unfortunately there is nothing to really learn from there, because the accused pleaded guilty and the only question was sentencing. The accused was obviously guilty, having sent the following threatening email, which is why I am mentioning this case, just to reprint it so you’ll know what a real threat is (sorry it’s in French but it really loses something in the translation, and caps lock in original)



Superterriffic Happy Hour Funtime Analysis, eh?

So the message seems to be if you are in Canada and want to threaten people over social media, make sure you are a crazy person with a history of disturbing behaviour and don’t threaten anyone in particular. Also, a “spur of the moment” threat is still a threat. Good to know. Look, just don’t threaten people on the internet, okay?



Soon very soon everthing will be a threat if said, and even thoughts will be actionable if you thinkgaboot it hard enough.


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