Does the First Amendment permit the government to prosecute a person for making a threat if the person did not intend the statement to be one?Last week, the U.S. Supreme Court granted review in Elonis v. United States, 13-983, where the petition for certiorari raised this question. The issue turns upon the scope of what is known as the "true threats" exception to speech protected by the First Amendment. For California lawyers, the case may resolve a split between the 9th U.S. Circuit Court of Appeals and the California Supreme Court as to whether proof of subjective intent always is essential to prosecuting a threat. Anthony Elonis was convicted in federal court in Pennsylvania of violating 18 U.S.C. Section 875(c) based upon extensive Facebook posts that contained threats to kill his wife and that threatened harm to the police, an FBI agent, and a kindergarten class. Section 875(c) makes it a federal crime to transmit in interstate commerce threats of bodily injury. At his trial, Elonis argued that the First Amendment requires proof that he subjectively intended to threaten others in posting his Facebook discourses. If he intended to post them for another purpose and did not intend harm, he argued, they would be protected speech. The trial court rejected this claim, concluding that it did not matter whether Elonis had the subjective intent to threaten anyone. The court instructed the jury that it must find that Elonis intended to make the statements, but that it was to use an objective test to determine whether each statement was a threat. Specifically, the court told the jury that a statement is a threat when a "reasonable person would foresee that the statement would be interpreted" as a "serious expression of an intention to inflict bodily injury or take the life of an individual." Elonis, who testified at trial, apparently wished to argue that he posted the items as a form of therapy after he suffered a job loss and his wife's departure with their children, and that he intended the writings to be merely "fictitious rap lyrics" rather than true threats. Under the jury instructions, however, his subjective intent was irrelevant to whether the statements were true threats. All that mattered was how a reasonable person would perceive them. Now, Elonis will be asking the Supreme Court to hold that the trial court should have found that, in order for threatening speech to be criminalized, the First Amendment requires that a speaker subjectively intended a threat. The starting point for analysis likely will be the only two cases in which the court has applied the true threats doctrine. The first case involved a statement at a Vietnam War protest rally. In Watts v. United States, 394 U.S. 705 (1969), the defendant told a crowd, "I am not going. If they ever make me carry a rifle, the first man I want to get in my sights is LBJ." The Supreme Court reversed his conviction for threatening to harm the president, holding that the statement was "political hyperbole" rather than a "true" threat. The underlying rationale in Watts may be that a statement which facially appears to be a violent threat may nevertheless merit First Amendment protection if, in context, it was metaphorical rather than literal. The court, however, did not define what a true threat is, and did not address whether the analysis should be subjective, objective, or both. More recently, in Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court considered a Virginia statute that banned cross burning with the "intent of intimidating." The court held that, consistent with the First Amendment, states could proscribe as a true threat cross burning done with intent to intimidate. If not intimidating, the court noted, cross burning potentially could be protected speech, as it could be done dramatically (as in the movie "Mississippi Burning") or as political speech that indicates group solidarity. (Less important to Elonis, the court struck down the particular cross burning statute at issue because it violated due process by stating that cross burning is by itself prima facie evidence of intent to intimidate.) In construing the scope of Black's holding, the 9th Circuit and the California Supreme Court have sharply diverged. Finding that "the subjective test set forth in Black must be read into all threat statutes," the 9th Circuit in United States v. Bagdasarian, 652 F.3d 1113 (2011), reversed the conviction of a defendant who, in message-board posts, threatened to kill and inflict bodily harm upon a presidential candidate (Barack Obama in 2008), in violation of 18 U.S.C. Section 879(a)(3). The court articulated the broad rule that "[a] statement that the speaker does not intend as a threat is afforded constitutional protection and cannot be held criminal." In the 9th Circuit's analysis, the Constitution requires the prosecution to prove that a statement was both objectively a threat and subjectively intended as one. In contrast, in People v. Lowery, 52 Cal. 4th 419 (2011), our state Supreme Court reasoned that Black held only that the category of true threats includes cross burning with the subjective intent to threaten, but it did not hold that subjective intent was a necessary requirement of a threat prosecution. In the California case, Eddie Lowery had threatened to kill an elderly victim who had testified that Lowery robbed him. At his trial for violating California Penal Code Section 140(a) by threatening violence against a crime victim, Lowery admitted making the statements but claimed that he did not intend to threaten the victim and was simply expressing anger at what he thought was a false crime accusation. Post-conviction, Lowery argued on appeal that Section 140(a) was unconstitutional because it permitted his conviction even if he did not intend a threat. The state Supreme Court construed Section 140(a) as applying an objective test that asks whether a reasonable listener would understand the statements at issue as a serious expression of intent to commit violence. Rejecting Bagdasarian in a brief footnote, the court held that this objective test ensured that the statute criminalized only true threats and thus did not reach speech protected by the First Amendment. Justice Marvin Baxter penned a concurring opinion in Lowery, joined by a majority of justices, for the purpose of explaining that the 9th Circuit's opinion in Bagdasarian was wrong. Surveying the law in other states and federal circuits, Baxter argued that "[t]he relevant intent remains the intent to communicate, not the intent to threaten." (The majority of federal circuits have disagreed with the 9th Circuit's view that the Constitution requires the subjective intent to threaten, yet some state Supreme Courts have agreed with the 9th Circuit.) Much of the dispute between the 9th Circuit and the California Supreme Court depends on the meaning of a single sentence in Black that defines "true threats." The U.S. Supreme Court stated, "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." In Bagdasarian, the 9th Circuit relied on that statement in concluding that a speaker must have the intent to threaten. In Lowery, the California Supreme Court read that statement as simply requiring that the speaker intended to make a statement that was objectively threatening. When it decides Elonis, the U.S. Supreme Court will not be limited to merely discerning the meaning of that sentence in Black, and surely will consider broader concerns about balancing the need to prosecute violent threats with constitutional protection of speech. Perhaps a central question for the court will be whether the objective test is sufficient to protect First Amendment interests. That is, are there in fact realistic situations where a reasonable observer would understand speech to constitute a serious threat of violence, but the speech should be protected because the speaker did not intend as much? But there also is a possibility that the court may not reach the constitutional issue at all. If a statute contains a requirement of subjective intent to threaten, then it criminalizes only true threats under either rule, and there is no need to decide whether the First Amendment requires that element. In what must have been a surprise to the parties, when the court granted certiorari in Elonis, it ordered the parties to brief not only the First Amendment issue that Elonis raised, but also the question of whether, as a matter of statutory interpretation, Section 875(c) requires proof of the defendant's subjective intent to threaten. Although the parties' briefs may elucidate this issue, there does not appear to be caselaw in which courts have found that the statute itself requires the subjective intent to threaten. Regardless, until the scope of the true threats exception to the First Amendment is settled in Elonis or in a future case, California criminal practitioners are left with federal law mandating that in any threats case the prosecution prove subjective intent to threaten, while in state cases the prosecution has that burden only if imposed by the particular charging statute.