Wednesday, December 10, 2014

True Threats, Motives, and Intentions

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.


David Ricardo said...

The analysis here using a third party who conveys the threat to an individual who is being threatened directly by another individual is not necessarily a proper way to reach a conclusion in this case. With a third party, intent as Ms. Colb very nicely describes does play an important role as to whether or not the third party is participating in threatening, and hence criminal speech.

But the case in hand does not involve a third party. And therefore intent should not play a role, as indeed it cannot because proving or just demonstrating intent in a direct threat is a very difficult process. Instead the standard ought to be, in fact must be whether or not a reasonable person could interpret the language as an actual threat. And in the current case that standard is more than met. It is not a general threat like ‘taking a hatchet’ to an unspecified group of people. It involves a direct, specific threat to a specific person and for the perpetrator to try and hide behind a free speech defense is offensive in the extreme.

If someone states that they are going to do grievous bodily harm to my family because I am Jewish I do not wish the courts to have to wrestle with the issue of whether or not it is the actual intent of that individual to do such harm or whether or not the motive of that speech is to produce fear in me and my family, or whether or not such speech is protected by either a doctrine of free speech or a doctrine of freedom of religion but instead to determine whether or not the speech would cause a reasonable person to suffer fear.

Speech can harm, something those who supported the Westboro Baptist Church decision are blindly ignorant of. In fact Westboro stands for the proposition that intent is not a workable standard for direct speech, since by any definition it is the intent of Westboro protestors to inflict non-physical harm on their audience as opposed to legitimate political protest. And direct speech that produces emotional harm should never be protected any more than physical actions which produce physical harm should ever be protected as a ‘freedom’ of the perpetrator.

If freedom of speech is perverted to protect speech that is harmful (as it was in the Westboro decision and in other decisions protecting the rights of abortion protestors to impose their speech on unwilling listeners) than ultimately freedom of speech will be lost. A decision in favor of the defendant in this case is not a victory for free speech, it is a defeat of it. And like so much of his judicial work, Justice Scalia’s invoking of the ‘friend’ example here is irrelevant to the case at hand.

egarber said...

I’m trying to figure out what all this might mean in another context: cyber bullying

Removing other considerations like defining minors differently, or the reach of school authority, what does the First Amendment say about this problem?

With bullying, the typical result isn’t fear that the victim is at risk physically (true threat); it’s more about hurtful information and storytelling. When is that beyond the reach of First Amendment protection – i.e., when does this kind of thing “harm by its very utterance”? Something tells me another type of law kicks in here (something like harrassment), but even so, the First Amendment creates limits, right?

Greg said...

I think this is an even more insightful post than it intends to be. This motive vs. intent question could just as easily be applied to the facts in Elonis's case, not just the Scalia hypothetical.

Scalia is arguing that a true threat is one whose MOTIVE is to instill fear in another, for the purpose of harming them.

Elonis, while using the word INTENT, really means that his MOTIVE was not to harm or intimidate, but merely to speak about his current situation.

Similarly, if a person called a school and said "my neighbor told me he was going to blow up the school" (assuming he has reason to believe that his neighbor actually said this) has a reasonable motive of protecting children. Similarly, a person who posted on social media that "my friend gonna blow up a school" with motive just to express shock, but not to inform the school, should still be protected by their motive.

I may be using motive vs intent incorrectly, but I think we're still getting to the same idea. If the person was not trying to scare somebody, we shouldn't consider something a true threat. Otherwise, calling a school to tell them that there ACTUALLY IS a bomb in the school would also be a true threat.

Joe said...

I wonder if Prof. Colb has anything to add to an earlier column now that the USSC ruled upon the case.

(the juror matter)

Unknown said...

or whether or not such speech is protected by either a doctrine of free speech or a doctrine of freedom of religion but instead to determine whether or not the speech would cause a reasonable person to suffer fear.