Imagine a situation in which a person who was distraught about his deteriorating marriage began to use social media to issue online threats about killing his soon-to-be ex-wife. The federal government intervenes, prosectuting the man under a federal law that prohibits using interstate communications to make threats to injure someone else. The accused claims that his violent language is not meant to be an actual threat, but rather is meant as a form of self-therapy. He also claims that his speech is protected by the First Amendment to the U.S. Constitution.

The federal prosecutor disagrees, and files criminal charges.

Who should win?

This was the essence of a case that made it all the way to the U.S.Supreme Court, which decided recently that the conviction of a man who had used Facebook to threaten to murder his estranged spouse — the trial court sentenced him to four years in a federal prison — was in fact improper. The Court reversed the decision, with 7 Justices agreeing with the majority opinion, one concurring with it and one dissenting. The case has been remanded to the trial court; it is not yet known whether the prosecution will seek a retrial.

Interestingly, the reason why the Court overturned the man’s conviction had nothing to do with the First Amendment. Rather, the grounds for the Court’s opinion centered on the question of the defendant’s intention when he wrote his threatining commentary.

Criminal law usually requires that to support a conviction the prosecution show that the accused had the intent — “mens rea” is the legal term — to commit an unlawful act. Absent a sufficient showing of intent, there can be no breaking of the law. The prosecution in this case had won at trial by persuading the jury that the defendant’s actual intention in writing what he did was irrelevant. It claimed that as long as a “reasonable person” would feel threatened by what he wrote, that was sufficient to prove a violation of the law.

The standard of the “reasonable person” is commonly used in cases alleging negligence, not criminal intent. Negligence means that even if the defendant did not know that his behavior violated a law, a reasonable person in his situuation should have known. The Court specifically rejected this reasoning.

The overall implications of the Court’s reversal of the conviction in this case are not entirely certain. Whether the kind of threatening language used by the man with regard to his spouse may still be legally protected as an expression of freedom of speech under the First Amendment remains undecided, and the Court in its decision offered no guidance to trial courts on this issue. Also, federal prosecutors have before this case used the statute in question to secure criminal convictions of more than 100 people in the past two government fiscal years, so the law itself would seem to be constitutionally valid.

At a minimum, the lessons to take away from this case include: (1) to avoid a possible federal prosecution, you should avoid making statements on the Internet or in any other medium that may cross state lines that are threatening in nature; and (2) if you are accused of doing so, you should secure legal counsel to ensure that your rights to a fair trial and the use of a proper legal standard of guilt or innocence are properly applied and aggressively defended.

If you or a loved one has been charged with a crime, contact the Hunsucker Legal Group at 405-231-5600 for your free consultation.