The US Supreme Court on June 1, 2015, issued a ruling reversing and remanding the lower court convictions for transmitting threats via Facebook messages.

Elonis, an amusement park employee who was going through separation and custody battle with his wife at the time was charged with transmitting threatening messages under 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”

The lower court conviction was based on jury instructions, which did not require proof of intent to issue threats but only that a reasonable person would have interpreted the statements as treats, a kind of strict liability civil negligence interpretation of the Statute, which the Supreme Court fiercely disagreed with.

The Court held as the Statute does not require or specify a mental state (intent) such does not completes the analysis. That is: “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.”

The Court specifically held that the typical criminal mens rea and scienter must also exist and be proven before conviction for threats can sustain. That criminal conduct requires the criminal intent. Specifically the Court held: “wrongdoing must be conscious to be criminal” and that “…a defendant must be ‘blameworthy in mind’ before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. 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.”

The distinguishing element between an innocent communication and criminal one is the intent and the mental state of the sender. Thus the Court held that since Elonis’ conviction was based solely on how his posts would be understood by a reasonable person – criteria well know and used in the civil arena and in tort liability – such is inconsistent with “the conventional requirement for criminal conduct— awareness of some wrongdoing.” And that “wrongdoing must be conscious to be criminal.”

It was significantly important here that Elonis had changed his Facebook name to a nom de plume and his threatening words were rhythmic and rap-like. It was as if he was testing the boundaries between creating and transmitting artistic words versus masking and coating criminal threats with art.

The ruling would have been significantly different if there was evidence of criminal intent such as weapons or ammunition or overt acts toward materializing the threats.

This case is significant as for now it draws and defines the boundaries between electronically transmitted communications/postings protected under First Amendment — or those that are criminalized under the Federal Statute.