Hazy on abusive speech

From an editorial Tuesday in the Los Angeles Times:

In overturning the conviction of a man who posted violent “rap lyrics” about his estranged wife and others on Facebook, the Supreme Court on Monday rightly made it harder to criminalize hateful speech.

Like many protagonists in free-speech cases, Anthony D. Elonis is a repellent figure. After his wife left him, Elonis wrote: “If I only knew then what I know now, I would have smothered (you) with a pillow, dumped your body in the back seat ... and made it look like rape and murder.”

Elonis said his rants were “therapeutic.” Nevertheless, he was convicted after the jury was instructed that he could be found guilty if a reasonable person would foresee that his statements would be interpreted as threats.

Writing for the majority, Chief Justice John G. Roberts Jr. said that the “reasonable person” standard was faulty because it didn’t take into account Elonis’ mental state. Wrongdoing, Roberts wrote, “must be conscious to be criminal.” The court was right to insist on it.

But the majority wasn’t completely clear about what mental state is required for someone to be convicted of making a threat. It was enough, the chief justice said, if prosecutors could prove that the defendant had “knowledge” that his statements would be perceived as a threat. But Roberts declined to say whether a speaker could also be punished for “reckless” utterances that he should have known would be perceived as a threat.

The court should have given clearer direction.