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June 16, 2014

SCOTUS takes up Facebook threats prosecution to consider First Amendment issues

FbcautionIn part because most of the Justices are the age of most grandparents, the Supreme Court takes up new technology in its cases at about the same pace most grandparents take up new technology.  This Term, for example, the Court has finally got around to considering the Fourth Amendment implications of smartphones (with a ruling likely coming in the next two weeks).  And, as this AP article details, this morning the Justice decided to pay some attention to Facebook and the First Amendment in a case to be argued next Term:

The Supreme Court will consider the free speech rights of people who use violent or threatening language on Facebook and other electronic media where the speaker's intent is not always clear.  The court on Monday agreed to take up the case of an eastern Pennsylvania man sentenced to nearly four years in federal prison for posting violent online rants against his estranged wife, law enforcement officials and former co-workers.

A federal appeals court rejected Anthony Elonis' claim that his comments were protected by the First Amendment.  He says he never meant to carry out the threats.  He claims he was depressed and made the online posts in the form of rap lyrics as a way of venting his frustration after his wife left him.

At his trial, the jury was instructed that Elonis could be found guilty if an objective person could consider his posts to be threatening.  Attorneys for Elonis argue that the jury should have been told to apply a subjective standard and decide whether Elonis meant the messages to be understood as threats.

Elonis's lawyers say a subjective standard is appropriate given the impersonal nature of communication over the Internet, which can lead people to misinterpret messages. They argue that comments intended for a smaller audience can be viewed by others unfamiliar with the context and interpret the statements differently than was intended. The Obama administration says requiring proof of a subjective threat would undermine the purpose of the federal law prohibiting threats....

For more than 40 years, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment.  But the court has cautioned that laws prohibiting threats must not infringe on constitutionally protected speech.  That includes "political hyperbole" or "unpleasantly sharp attacks" that fall shy of true threats....

Elonis' estranged wife testified at his trial the postings made her fear for her life. One post about his wife said, "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

FBI agents visited Elonis at home after the amusement park that fired him contacted law enforcement officials about his posts.  After the agents left, Elonis wrote: "Little agent lady stood so close, took all the strength I had not to turn the (woman) ghost. Pull my knife, flick my wrist and slit her throat."

I am not sure a ruling in this interesting case is likely to have huge sentencing consequences, but I am hopeful it might at least encourage ever more civility in the comments to this blog and throughout the rest of the (often too ugly) on-line world.

June 16, 2014 at 11:51 AM | Permalink


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I'm somewhat surprised that they took this case. The reason being that in my view under either standard he loses. For the record, on the narrow point I think the subjective standard should prevail, but even under that standard I think a jury could easily find him guilty. So I think this is a rather poor vehicle for deciding such as momentous issue. The facts are very friendly to the government.

Posted by: Daniel | Jun 16, 2014 12:25:53 PM

Isn't it settled law, for decades if not hundreds of years, imminence of physical action is also required?

All the threats here and elsewhere have been by the left, by the abolitionists. They protect the murderer yet are capable of violence themselves. These silenced, drove off a valuable advocate in the legal profession, providing balance and facts. Those people need to apologize and ask the person return.

People who are dangerous and do attack others usually are stealthy and silent. Loudly threatening and mentally ill is an indication of the need for treatment, even if refused and necessitating an involuntary commitment.

Posted by: Supremacy Claus | Jun 17, 2014 8:39:00 AM

Feminist employee says, "I feel threatened." A male employee has to be fired. Is that OK in the absence of a physical act?

Civility is lawyer code for, accept the damage done by the lawyer profession, but do not yell because it makes us feel bad.

Posted by: Supremacy Claus | Jun 17, 2014 8:57:31 AM

Four justices are in their 50s or thereabouts, so the grandpa's Victrola stuff is starting to change.

Posted by: Joe | Jun 17, 2014 12:13:05 PM

18 U.S.C. ยง 875(c): "Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both."

There is no intent requirement, making the threatening communications strict liability crimes. One has to wonder about the limit of the meaning of the word, injure, as well. Would demanding a boycott, be an economic injury? Would shaming and shunning constitute a dignitary injury? The left does that a lot, and may come to regret enacting this law.

Posted by: Supremacy Claus | Jun 17, 2014 2:58:26 PM

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