Teri, thank you for bring this up. I'm a little confused on this issue, so I'm hoping you guys can help.
There are two relevant cases here, which I'll refer to as Elonis I (from the Third Circuit) and Elonis II (from the U.S. Supreme Court).
There were two questions presented in Elonis II: (1) whether the "true threats" exception to the First Amendment requires negligence, recklessness, or actual purpose, and (2) whether 18 U.S.C. 875(c) requires under negligence, recklessness, or actual purpose. The Supreme Court's decision (http://www.supremecourt.gov/opinions/14pdf/13-983_7l48.pdf) reversed on the grounds that 18 U.S.C. 875(c) requires something more than negligence. It expressly declined to decide the First Amendment issue or to decide whether recklessness is sufficient under 18 U.S.C. 875(c): "The Court declines to address whether a mental state of recklessness would also suffice. Given the disposition here, it is unnecessary to consider any First Amendment issues." Accordingly, it seems like the holding in Elonis II is inapplicable to any state law cases we might try under the PDVA and New Jersey criminal statutes. The only relevant holding that might have come out of Elonis II for lawyers here in New Jersey would have been a constitutional one.
The Third Circuit's decision in Elonis I (http://www2.ca3.uscourts.gov/opinarch/123798p.pdf), however, seems to decide that the First Amendment requires only negligence and therefore upheld the conviction under 18 U.S.C. 875(c). Because the Third Circuit's interpretation of the First Amendment is binding on New Jersey Courts, and the Supreme Court did not decide that issue, it appears that New Jersey Courts are still required to follow Elonis I and to continue holding that the First Amendment requires only negligence. Nevertheless, New Jersey statutes are free to go beyond the baseline required by the First Amendment, right? So, whether negligence, recklessness, or actual intent is required in New Jersey remains unclear.
Anyone else have thoughts? Have there been cases addressing mens rea for harassment and/or terrorist threats under NJ statutes? I was only recently admitted, and I know nothing about those statutes. Elonis piqued my interest, though.
Thanks for any feedback.
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Andrew M. Shaw
Associate Attorney
DeTommaso Law Group, LLC
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Somerville, NJ 08876
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Original Message------
Dear Colleagues,
For those of you who do not also practice criminal law, there is a new United States Supreme Court decision which might be relevant to Family and DV cases, particularly those involving harassment and terroristic threats. I refer you to Elonis v. United States which was decided today (no citation yet available) and comes out of the Third Circuit (New Jersey is in the Third Circuit). The defendant was sentenced to 44 months in prison for posting threats to his wife and others on Facebook. The Supreme Court today reversed the conviction, finding that proof of the defendant's specific intent make a threat is required for conviction. It is not enough that a reasonable person would believe that the words constitute a threat.
Hope you find this helpful.
Teri S. Lodge, Esq. (Family Law and Criminal Defense)
Holston, MacDonald, Uzdavinis,
Zeigler, Lodge & Myles, P.A.
66 Euclid Street
Woodbury, New Jersey 08096
Phone: (856)848-5858
Fax: (856)848-1898</mailto:[email protected]>