Abstract

What does it mean to make a threat, and under what circumstances can a speaker be convicted for making one?  This Note examines these questions in light of Elonis v. United States, a Supreme Court case decided in June 2015.  There, the Court held that when a speaker subjectively intends a statement be taken as a threat or knows that it will be taken as a threat, she may be convicted under 18 U.S.C. § 875(c).  The Court did not decide whether a speaker who recklessly makes a threat may be convicted under the statute.  This Note argues that convicting a reckless speaker would be consistent with both principles of statutory interpretation and the First Amendment.  It advocates for this result particularly because it would protect victims of domestic violence.

This Note argues that courts should interpret the statute to allow a speaker who makes a threat recklessly to be convicted for three reasons.  First, such interpretation is consistent with principles of statutory interpretation.  Second, it is consistent with the First Amendment.  Finally, this interpretation is appropriate because threats are an integral part of a pattern of domestic abuse, and given this unique power structure, defining the crime in this way protects the victims.  Precedent supports using policy to interpret a statute, and courts should do so here.