by Sherry F. Colb
In my Verdict column this week, I discuss the recently argued case of Elonis v. United States, in which the U.S. Supreme Court faces the question whether federal statutory law and the First Amendment permit the prosecution of a man who made threats but whose jury was not asked to determine whether the defendant truly intended by his words to generate fear in the objects of those threats. In my column, I analyze the constitutional question in terms of both the harm that threats inflict (harms that underlie the "true threats" exception to the First Amendment's protection for free speech) and the self-censorship (or "chilling effect") that different types of threat regimes might generate among people hoping to engage in legitimately protected expression.
In this post, I want to focus on an issue that arose during the Elonis oral argument last week. In the course of his argument, the petitioner's attorney, John P. Elwood, seemingly moderated his position on the questions presented to the Supreme Court. He said that he would be satisfied with a ruling that required the prosecutor to prove that a defendant knew that his threatening words would cause fear, even if it was not his intention or purpose to cause that fear. Justice Scalia confronted Elwood about this concession and urged the latter to insist on an "intent" standard rather than being satisfied with a requirement that the prosecutor prove "knowledge." Either of these standards would, of course, be more demanding than the "reasonably foreseeable" fear standard that the trial court applied (and that the U.S. Court of Appeals for the Third Circuit affirmed) in this case.
To illustrate the inadequacy of a knowledge standard, Justice Scalia posed a hypothetical example in which "you have this disaffected divorced husband who wants to place his former wife in fear, he doesn't call her up, but a friend of his who knows about his malicious intent calls up the former wife and says, you know, your former husband has threatened to kill you." Under a "knowledge" standard, argued Justice Scalia, the friend who calls the ex-wife to tell her about the ex-husband's threatening words could be guilty of threatening the ex-wife. As Justice Scalia put it, "Now, why wouldn't that meet all of the -- all of the requirements that you insist upon, knowing that this would cause fear in her?.... once you depart from that purpose, you -- you open the door to a situation like that which, it doesn't seem to me, should be covered." Elaborating on this point, Justice Scalia added "it's not his purpose to put her in fear, but it certainly puts her in fear. Any reasonable person would think it puts her in fear."
Later in the oral argument, Justice Kennedy picked up on this thread and asked the government's attorney, Michael R. Dreeben, how he would avoid liability for the friend in Justice Scalia's hypothetical example.
From the short responses that the two attorneys gave to this hypothetical scenario, it seems clear that neither of the two sides wanted the friend (who had warned the wife) to be subject to prosecution for threatening her.
What interests me about the question is the assumption that both Justices, Scalia and Kennedy, make about the friend who tells the ex-wife about her ex-husband's threat: they both assume that the friend's goal is not to cause fear and that, accordingly, an intent standard would protect the friend from prosecution, whereas a knowledge (or, a fortiori, a reasonable foreseeability) standard would fail to protect him. I would argue, however, that this assumption is not obviously well-founded.
Consider why a friend of a threatening ex-husband might contact the ex-wife to let her know about her husband's threat to kill her. The most likely account (if we believe he is acting decently, as both Justices assume that he is) is that the friend wants the wife to get help, perhaps by seeking a restraining order or by filing a criminal complaint or, at least, by being vigilant in her ex-husband's presence. Stated differently, the friend does intend to generate fear in the ex-wife. If he did not want to frighten her, then he would not have told her about what her ex-husband said. He tells her precisely because he believes it is necessary for her to know about -- and to fear -- what her ex-husband said he would do so that she can take the necessary steps to protect her own safety.
Why, then, do Justices Scalia and Kennedy (and the lawyers arguing the case) all agree that the friend should not be prosecuted? It is because the friend's presumed motive for wanting to frighten the ex-wife is benevolent rather than malevolent. What distinguishes the ex-husband from his friend, then, is not the fact that one intends to cause fear while the other intends something different. Both intend to cause fear, but what ultimately motivates the ex-husband is malevolence toward his ex-wife -- the desire to make her suffer -- while the friend is motivated by a desire to help protect the ex-wife.
Much like the wise cardiologist, who tells her patient to drastically reduce or eliminate animal products from his diet or he will die of cardiovascular disease, the friend in Justice Scalia's scenario does not bear ill will toward the ex-wife but is simply accurately reporting a threatening state of affairs that the listener must address in order to ensure the listener's continuing health and survival. Like the warning on a cigarette package, the doctor's goal in the scenario certainly is to scare the patient, but what motivates the frightening messaging is a desire to heal and help, rather than a desire to harm. This is a matter of motive rather than intent.
To understand the difference between motive and intent, consider the case of a robber who selects a frail old woman as a victim instead of a rugged, young man. The armed robber in this scenario has intentionally discriminated in selecting his victim, on the basis of age, sex, and physical ability. His motive, however, might not have been any hatred of the elderly, of women, or of the physically challenged. His motive might just be the desire to get money without having to fight and risk getting hurt. He is, in other words, likely motivated in his actions by expediency rather than by hatred.
In the above example, we would regard the armed robber as guilty of a felony, regardless of his motives. Motive, in such a case, does not determine criminal responsibility. We might want to punish more severely those who deliberately single out vulnerable victims to prey upon (or we might not). But if we are interested in differentially punishing people who are motivated by hatred, then we would probably distinguish between this armed robber and a Klansman who targets African Americans for his criminal predation.
So where does that leave Justice Scalia's scenario with the friend warning the ex-wife? It means, first, that selecting an intent standard (rather than a knowledge or reasonable foreseeability standard) will not do the work that Justices Scalia and Kennedy imagine that it will. The helpful friend who warns the ex-wife does intend by his words to make the ex-wife scared, so he will satisfy any standard, if the standard is exclusively concerned with intent. The motive question, however, asks why -- why does he intend to scare her? What distinguishes the friend from the ex-husband is the answer to that question: the husband is motivated by malevolent feelings, while the friend is motivated by good will.
If a criminal prohibition against threats leaves the friend vulnerable, then it does so because the prohibition fails to take account of motive. Yet neither Elwood nor Dreeben seemed troubled by this failure (nor did the other Justices, who seemed uninterested in the friend scenario). Perhaps we needn't be troubled either, as we all perhaps understand implicitly that threat statutes prohibit conduct that is motivated by hostility towards their targets. And if we are right in this understanding, then the friend who warns the ex-wife is safe.