The violation of a PFA involves a criminal proceeding called an “indirect criminal contempt” action, or ICC. The burden of proof is “beyond a reasonable doubt” and with criminal penalties applying (including incarceration), an ICC determination must comport to criminal law.
In criminal law, ordinary negligence is not punishable. So if a person negligently makes a post – that could be interpreted as harassment by the petitioner having a PFA order – is that punishable by an ICC?
Recently, in Elonis v. United States (Docket No. 12-983, Term 2014), and appeal from the US Court of Appeals, Third Circuit, the Supreme Court of the United States addressed the state of mind requirement needed to support criminal prosecution. There, the Supreme Court of the United States held:that “wrongdoing must be conscious to be criminal” and the actor must have the awareness that the statement threatens, rather than whether a “reasonable person” would consider the statement a threat. The court further reasoned that, to hold otherwise would be to apply a negligence standard to criminal conduct; a standard the court reaffirms has historically been avoided. As explained in the legal intelligencer:
The application of the Elonis decision to Pennsylvania’s criminal statutes and protection-from-abuse laws is unclear, but Alito’s vision of a recklessness standard for such statements is likely to emerge as the law on this issue.
A recklessness standard for such statements makes sense in the context of an indirect criminal contempt charge under a protection-from-abuse order. Where a protected party either shares social media contacts with their abuser; the abuser uses an open forum to post statements; or the abuser knows the victim will read or be exposed to the statements, would it not be a violation under 23 Pa.C.S.A. Section 6108(a)(6), prohibiting the defendant from having any contact with the plaintiff, or under Section 6108(a)(9), prohibiting the defendant from stalking or harassing the plaintiff, as defined by the criminal statute? Where the intent is to post statements to social media knowing the likelihood of exposure to the victim, it is likely to be considered an indirect attempt at contact, if not direct contact outright.
As argued by Thomas in the dissent, the argument made by Elonis would make threats such as his one of the most protected categories of unprotected speech. Elonis intended to terrify the subjects of his rap lyrics, thus upholding his conviction would neither reject nor ignore a mental intent standard, Thomas said. Restricting such statements, Thomas reasoned, is akin to restrictions on “fighting words,” which require no proof of intent to provoke a violent reaction but are defined by what language an “ordinary citizen” would react to. Thomas ultimately finds that the majority’s opinion leaves that question as to whether Elonis’ statements are protected speech unanswered and the lower courts without definitive guidance.
It is unlikely the majority opinion of Elonis will have a chilling effect on prosecutions or convictions based on similar threatening statements. The Elonis majority opinion did little, if anything, to address social media and Internet speech or give guidance as to whether such speech purposefully disseminated over social media violates state and federal criminal codes or protection-from-abuse orders.
Where the majority opinion reaffirms that negligence is not an appropriate standard of mental intent, Alito’s concurrence articulates a standard where a statement’s purposeful dissemination over social media moves it beyond “negligence” to where the “recklessness” of the act allows the courts to consider the victim’s interpretation of the statement. Consistent enforcement of protection-from-abuse orders and convictions, even without the support of the Elonis majority opinion, may eventually give rise to an appeal that will allow the court to consider Alito’s proposed recklessness standard or some other level of protection, if any, Elonis threats are entitled to receive.
We will keep you posted about whether state or federal law articulates a clearer standard about what type of social media post can trigger punishment for an indirect criminal contempt. In the interim, those subject to a PFA order are wise to avoid social media altogether, absent use for clearly commercial purposes.
For more, call our Pittsburgh Lawyers: 412.780.0008