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November 30, 2014

Previewing SCOTUS argument in Facebook threat case, Elonis v. United States

Images (2)To kick off December, the Supreme Court will hear oral argument in Elonis v. United States to consider application of the federal law prohibiting making threats using the Internet.  Lyle Denniston has this lengthy preview post at SCOTUSblog titled "Social media as a crime scene," and here are excerpts:

There is a way for the Court to decide the case of Elonis v. United States without sorting out just how far First Amendment protection extends to private expression on the Internet. In agreeing to hear the case, the Court added a question about the meaning of the federal law at issue.  If it narrows the reach of that law, it may not need to say anything directly about the First Amendment, although it probably would reduce the law’s scope if it felt that was necessary to avoid having to rule on the constitutional question.

In this case, a thirty-one-year-old man, Anthony Douglas Elonis, who lives in the small Pennsylvania community of Lower Saucon Township, was convicted for postings on Facebook four years ago that prosecutors treated as actual threats of violence. The jury agreed, leading to a guilty verdict and a forty-four-month prison sentence. His messaging came after his wife had left him and he was fired from his job at an amusement park because of one of his postings....

His conviction came under a federal law that makes it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.”

The Supreme Court, in fact, has already made at least partly clear — in decisions that go back to 1969 — that the First Amendment does not permit the government to punish for all threats made in communications in the media or in the public square. It has confined prosecution to “true threats,” and has stressed that the law against threatening someone does not apply at all to “political hyperbole” or to “vehement, caustic, or unpleasantly sharp attacks” that cannot be interpreted as “true threats.”

And, in a decision in 2003, the Court attempted to say just what a “true threat” is, legally speaking. It did so in interpreting another federal law that made it a crime to burn a cross with the intent of intimidating someone. That law said any cross-burning, by the act itself, would be proof of an intent to intimidate. A plurality of the Court said that the act alone was not sufficient. “‘True threats,'” that opinion said, “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 [Elonis], the Supreme Court has the task of clarifying what a person “means to communicate” when speaking in terms of violence on the Internet, and also what constitutes “an intent” to commit the crime of making an illegal threat.

Basically, this case presents the Court with two choices — first, to look at the issue of intent from a subjective perspective, focusing on the speaker, or to look at it from an objective view, focusing on both the speaker and on a hypothetical “reasonable person” exposed to the message.

Anthony Elonis and his supporters argue that his postings on Facebook were not “true threats” because he actually had no “subjective intent to threaten another person.” If that is the test, a jury would have to make its own assessment of what an Internet user like Elonis did have in mind, examining the specific words used and their context.

The federal government and its supporters, however, argue that Elonis’s statements were judged — and should have been judged — by two measures: first, did he make his statements intentionally (without regard to what he was thinking), and, second, would “a reasonable person” read the words used and their context as conveying to the target of the message that they would be injured or killed?...

The effect of the decision that does emerge almost certainly would be felt in the very public space of such Internet sites as Facebook. For that reason, Elonis is running interference for the Internet as a whole, and especially for those sites where expression is robust, indeed. Much of the discussion in the case, in fact, is on the potential impact on the very provocative postings of rap music, and its fairly common idiom of violence.

November 30, 2014 at 10:17 PM | Permalink


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None may look upon the Virgin Empress of China without being beheaded. The President may not be threatened. Now add the feminist and its male running dogs, in the lawyer profession.

One also recalls, the Supreme Court immunized the police who failed to protect a wife who had a judge's order violated by her super violent husband. He murdered her, as he promised. The police violated the law by not enforcing a judge's order, making their tort a per se tort. So the Supreme Court allowed the agents of the prosecutor to protect an ultra-violent criminal, promising to kill the wife, despite a written judge's order. They are a little hypocritical on this subject, when it comes to a productive male.

Threats should be treated as inchoate crimes, or else dismissed. The main feature of such in the Model Penal Code is "a substantial step in a course of conduct," in other words, not just words but actions, an actus reus.

The guy in the prior case had injured his wife many times. The guy had a gun, kidnapped his three daughters, before anyone died, called to say where they were. The police did nothing because the police protects criminals. He shot her. The three daughters were found dead in his car. He then shot at police, and was shot dead by them. They were looking out only for themselves. The appellate courts up to the Supreme Court denied her right to sue the police even after they refused to enforce a judge's order. She had a restraining order by a judge, not a protection from abuse order. (Castle Rock v. Gonzales, 545 U.S. 748 (2005)).

Posted by: Supremacy Claus | Nov 30, 2014 11:00:42 PM

I don't have a strong support for the whole "true threats" exception to the 1A in the first place and it would totally lose my support should Elonis lose his appeal. What angers me the most is that the 1A is designed to protect the liberties of the speaker, not the sensitivity of the listener. But somehow in the minds of too many people a Constitutional provision that was designed to protect the liberties of the speaker has turned into a provision that is protects anyone who feels they are a "victim" of another's words. My mother was an ardent feminist in the mold of Justice Ginsburg but she said to me, "Sticks and stones may break my bones but words will never hurt me." Her other favorite line was, "You're not sugar, you won't melt." Sadly, melting seems to have become a cultural privilege.

Sometimes it is hard to suffer another but we suffer their minor foibles because we realize in our more honest moments that they suffer ours. I recognize that times have changed and that the internet is to some degree now a vast sewer for America's collective subconscious. But if we cannot tolerate each other's words, how will we ever learn to manage each other's behavior? And if cannot constructively manage each other's behavior the inevitable end result is violence, and then war.

That's the irony in the government's position. By seeing war where there is none, it will guarantee war when there needn't be any.

Posted by: Daniel | Nov 30, 2014 11:00:55 PM

No doubt in my mind that if Gonzalez had just shown her husband that she had a gun, the police would have arrested her for aggravated assault, just for showing him the gun. The husband would have told them, "I felt threatened," and there is zero tolerance by the lawyer and by the agents of the lawyer for public self help, the sole factor uniting all jurisdictions with low crime rates.

Posted by: Supremacy Claus | Nov 30, 2014 11:07:29 PM

Say one issues a sex offender registry. The neighbors do not want one of the offenders in their neighborhood. They make credible threats, and show him the Bic lighter and the can of gasoline to be used on his home if he still in the neighborhood in a month. This is highly credible their having killed another one in a house fire the year before. He reports the threat. The neighbors are arrested for the credible, threat and the substantial steps, getting the tools of the violence. Everyone is just better off if the sex offender moves to another location, including the sex offender, still alive.

If this Elonis's sentence is affirmed, there will be no more credible threats issued, and many more people will just be killed without warning.

This quote is from the Pennsylvania sex offender registry. The word, Warning, is in very big and red font. They need to make it flash on and off. One has to wonder what the purpose of the registry is, besides generating government make work jobs.


Any person who uses the information contained herein to threaten, intimidate, or harass the registrant or their family, or who otherwise misuses this information, may be subject to criminal prosecution or civil liability.

Posted by: Supremacy Claus | Nov 30, 2014 11:51:13 PM

@Supremacy Claus

Could you help us understand how you ramblings about Gonzales connects to the case at hand? All I see is another attempt to derail comments based on some minor slight you perceive yourself to have received. Or are you trying to engage in some meta-point about free speech by showing how it even protects you, of all people.

Posted by: Daniel | Nov 30, 2014 11:52:48 PM

According to the blog post, Elonis posted rap lyrics. If he gets convicted, he should file cross charges against the authors of these lyrics. I am betting Elonis is white.

"Rap, and in particular, certain extreme sub-genres of rap such as gangsta rap, carry with them many negative stereotypes of violence and crime….Rap has long been part of black oppositional culture, spurring controversies…over lyrics allegedly glorifying — if not encouraging — the killing of police officers.”

If the Court does engage the issue of the impact of the case on rappers, it might notice that, in one of his postings, Elonis described himself as “just an aspiring rapper who likes the attention.”"

Careful about opening this link to this news article, since they also reproduce the violent lyrics in question. The witch hunt is on by the vile feminist lawyer and its male running dog.


Posted by: Supremacy Claus | Dec 1, 2014 12:14:12 AM

@Supremacy Claus

Thanks for sharing that reference to Castle Rock. It has nothing to do with Elonis but oddly enough it was exactly the case I was looking for in another context. So thank you!

Posted by: Daniel | Dec 1, 2014 1:20:22 AM

Daniel: You are in the Twilight Zone. That is jangling your nerves. Up is down, and black is white in this lawyer world.

The Supreme Court immunizes the police in Gonzales, agents of the prosecutor, from paying for their horrific negligence and protection of an ultra-violent criminal, in violation of a written judge's order they held in their hands. They refused to obey the order to enforce a judge's restraining order. He also had traveled a long way in furtherance of the conduct he promised, being armed, being at the house, kidnapping his daughters, calling to inform of his location with them. How far does a guy have to go to get arrested? An innocent woman, and her three beautiful little girls paid the ultimate price, as did the husband. He would be alive today had they not intentionally refused to obey the judge's order. They needed to pay exemplary damages. To deter.

In contrast, I predict they will come down hard on Elonis, a productive male, until he lost his job for posting obliquely threatening published rap lyrics. How can I make such a prediction? There are millions of individualized, highly specific threatening statements on the Internet. Elonis threats were oblique, but against lawyers, not against innocent women and children. This case will open a wide front of prosecution and litigation, likely bringing in $billions in lawyer fees. The Rent Seeking theory is the Grand Unifying Theory of Appellate Decisions, the Theory of Everything legal.

To make a distinction, I have called for the start of the enforcement of 18 U.S. Code Chapter 115 and all its subsections. I have also offered support to direct action groups of crime victims, which are unrelated third parties. The first proposal is the path to restraining the lawyer hierarchy, but unlikely since any brave prosecutor who decides to will be personally destroyed by them. The second is remote possibility since most victims and families are too busy, trying to be productive. This is a debt I am repaying to a nation that has done so much for me, to point out the self evident. Outside the enforcement of the US Code, I oppose the killing of lawyers. Their replacements will only be glad, and nothing will change.

I sometimes assume too much, and fail to provide the tight relevance of some citations. I always enjoy being questioned and challenged, since each legal assertion should have 6 to 10 layers of support, in case the initial ones fail. I hardly ever get to layer 2, which where this answer is.

Posted by: Supremacy Claus | Dec 1, 2014 2:24:03 AM

If an actor utters the famous line from Henry IV, pt 2, can he be arrested after Elonis? I am not quoting the line, because it is too violent, and I disagree with it. The rule of law is an essential utility product. And if the public is oppressed by the hierarchy, the ordinary lawyer is doubly so, and the ordinary judge triply so. I am the best and perhaps the only true friend of the regular lawyer and regular judge, doing their work.

Posted by: Supremacy Claus | Dec 1, 2014 2:29:37 AM


"In contrast, I predict they will come down hard on Elonis,"

Huh? The odds are heavily in Elonis's favor to win. Overall, the Roberts court has been free speech supportive. The only two I can see who might vote against him are Ginsburg because of the DV angle and Alito because of the prosecutor angle. Sotomayor and Kagan are something of toss ups. Probably the biggest question mark is Breyer. It seems to me that Roberts, Kennedy, Scalia, and Thomas are any easy four. I can envision (though I do not expect) a 9-0 win for Elonis. I'd be surprised, however, if he loses.

I'm saying this in advance of argument so we shall see.

Posted by: Daniel | Dec 1, 2014 3:16:12 AM

Daniel: I hope you are right, sincerely. I would be delighted if for once the Court did the right thing. I see no difference between ideologies in predilections to vote for or against freedom, since all are trumped by the rent.

Posted by: Supremacy Claus | Dec 1, 2014 4:13:32 AM

I am going to make a threat right now so all you feds hold onto your hat:

I propose that we kill the concept of "reasonable person" in applying laws. This just makes the law and judges "spineless and wishy-washy" in the their application of the "law". Who knows what a reasonable person is? I don't, and while their at it, I want a real working definition of force.

Let's have some real guidelines, and not cowardice!

Posted by: albeed | Dec 1, 2014 7:58:15 AM

Albeed. Glad you brought up that subject.

The common law comes from a notebook written by one judge, a monk, trained by St Thomas Aquinas. The formtat of IRAC, the adversarial system, the format of the brief all came from Scholasticism. You and most lawyers learned about in 10th Grade World History and Western Civ 101. That memory was erased by 1L indoctrination by the criminal cult enterprise. That judge served Edward I, Longshanks in Braveheart. Dude killed 400 Jews who lent him money to finance his wars. He then banned the Jews for 400 years from England. He invented the Yellow Star of David, to be worn by Jews leaving the house. OK he killed the Jews, and loosed his soldiers on their families. He also killed Welsh, Irish, and Scottish people by the 100's of thousands. OK, he was a French bastard. The question for today, why does his portrait hang in the US House of Representatives Gallery of Great Law Givers? This portrait is an insult to all the ethnic groups he massacred.

St. Thomas argued that reason is the best way to make moral decision. Intelligence, selfishness, common sense and all other considerations are misleading because of the Fall from Eden and the seven deadly sins. They can mislead intellect. What is reason and why is it the superior pathway to moral decisions? Reason is different from intellect. It is the ability to perceive God. And the most reliable enumeration of the will of God is the New Testament. That book is the biography of one man, Jesus. So the reason reason is the central doctrine of the common law is that it is the way Jesus would think. The reasonable person is the thinking of Jesus. The lawyer insists the reasonable person must be fictitious. Why? Because the resulting standards of conduct must be objective. The real reason the reasonable person must be fictitious is that he is Jesus in violation of the Establishment Clause.

Utility on the other hand can be quantified by money value, and by the probability of some outcome. Not from a religion. It has flaws, but none is so glaringly a betrayal of the constitution by the treasonous lawyer hierarchy. Look at the court, like a church. Look at the stupid outfits of judges, idiotic imitation of church outfits. The adversarial process, a time wasting, worthless process generating income and wrongful outcomes an unconscionable amount of the time? From the disputation methodology of Scholasticism, a church philosophy, and lawless in our secular nation. The idiotic Latin phrases. Who are the only people speaking Latin today? Only church people.

The supernatural doctrines were attributed to God, in accordance with their faith, even by the Medieval church, and not to man, as ascribed by the lawyer. That is just silly.

One more little thing. People were pretty sharp in the 13th Century. They failed to prove the existence of God by the study of nature. Perhaps there was no God, some concluded. The Church answered with the Inquisition. That lasted all the way to the French Revolution. Even the very slow church apologized for it. The Inquisition had an infinity of regulations that were violated by the middle class and rich people. They were offered alternatives to the stake in the form of a plea bargain, giving their assets to the Church. Familiar scam? Yu learned this stuff in high school and in freshman year of college. Ask a Harvard Law grad with a PhD in Medieval Legal History, what is reason, and why it is the central doctrine of the common law. No idea. Memory has been totally erased.

Only the idiot lawyer still uses these 13th Century methods. Even the church has moved on, but not the idiot lawyer.

Posted by: Supremacy Claus | Dec 1, 2014 9:41:38 AM

The USSC released some orders and there were a couple slightly notable statements at the end: http://www.supremecourt.gov/orders/courtorders/120114zor_2d93.pdf

Posted by: Joe | Dec 1, 2014 10:34:34 AM

Emily Bazelon, who has written generally evenhandedly about issues that touch upon the matters raised by this case has more -- http://www.nytimes.com/2014/11/30/magazine/do-online-death-threats-count-as-free-speech.html

I don't think the 1A protects a "true threat" if that term is properly applied, particularly if it is limited to the immediacy and other requirements suggested by Brandenburg v Ohio. If an ex-spouse had a bf call me on the phone and say "hey I'm going to kill ya," no it isn't protected speech. It is a "true threat." If "words can't hurt you" is taken literally, verbal harassment would be totally protected. It isn't.

The case doesn't require such absolutism. Allowing people to call me up 10x and harass me verbally since "words can't hurt me" etc. isn't necessary. The concern is that he didn't actually intend to harm the person, the words were in effect exaggerated expressions of his ire. For instance, he used rap lyrics etc. for effect.

But, especially when children -- as they often are -- are involved, the use of verbal comments are not always so benign that we should just tell people -- some of whom victims of abusive relationships for which the language is just additional -- "honey you won't melt." They are not just "minor foibles" all the time.

Posted by: Joe | Dec 1, 2014 12:04:07 PM

Emily Bazelon banned me from her comments, and unfriended me on Facebook. Not evenhanded at all. She is a biased left wing extremist and rent seeking lawyer.

Joe do you have any comment on Castle Rock v Gonzalez detailed above? When it comes to protecting the agents of the prosecution, the careless police, there is no distance on may go to threaten people and get held accountable.

Posted by: Supremacy Claus | Dec 1, 2014 1:02:06 PM

"Emily Bazelon, who has written generally evenhandedly"

Emily Bazelon has never written evenhandedly on a topic in her life. To be fair to her, it is not her job to write evenhandedly; her job is to be a muckraker. Joe, either you are trolling or ravingly delusional. Given the rest of your comment, I think it's the latter.

In any event, I glanced through the argument and wasn't impressed. If the argument is any guide (which it isn't always) this case will be a lot closer than I thought. In the end, it may bring about a splintered decision which upholds the conviction but fails to provide any meaningful legal guidance--that is the way justice Breyer seemed to be leaning.

Posted by: Daniel | Dec 1, 2014 4:11:02 PM

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