NNEDV Disappointed in Supreme Court Opinion, though Hopeful the Lower Court Will Hold Abuser Accountable for Online Threats

June 1, 2015

The National Network to End Domestic Violence (NNEDV) is disappointed by today’s Supreme Court’s decision in Elonis v. United States. As Justice Alito noted in his concurrence, “[t]hreats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace.”

Threats play a central role in domestic abuse and are a core tactic that many abusers employ.

“Threats play a central role in domestic abuse and is a core tactic that many abusers employ. Threats cause devastating harm to victims, including fear, anxiety, loss of sleep, and disruption, regardless of whether the abuser intended to threaten or only intended to vent or to make a joke,” said Kim Gandy, president and CEO of NNEDV. “Therefore, we believe a reasonable person standard is appropriate for conviction of threatening under the statute at issue.”

At the same time, NNEDV is relieved that the Supreme Court avoided the constitutional question (i.e., whether subjective intent is required as a matter of First Amendment law). A ruling on the constitutional question would have affected not only the statute in question, but all other federal and state anti-threat statutes, as well as anti-stalking statutes that also criminalize threatening behavior, many of which have been put into place over the past two decades to give domestic violence victims some much needed protection against their abusers.

Threats cause devastating harm to victims, including fear, anxiety, loss of sleep, and disruption, regardless of whether the abuser intended to threaten or only intended to vent or to make a joke.

Given that the Supreme Court has rejected the reasonable person standard, we expect that it will become more difficult to protect victims of abuse from threats. However, we remain hopeful that the Third Circuit, to which the case has now been remanded, will articulate a clear mens rea standard — perhaps including a finding that the statute is satisfied if the behavior at issue was reckless. Any such standard must take the needs of domestic violence and stalking victims into account, and give prosecutors clear guidance for ensuring that perpetrators who use threats as “weapons of domestic abuse” are properly punished.