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December 1, 2014

Justices struggling in Elonis argument with free speech and Facebook threats

There are now lots of old and new media sources reporting on today's Supreme Court oral argument in Elonis v. United States, the case considering the reach and application of a federal law prohibiting making threats via the Internet.  The folks at SCOTUSblog have two terrific review posts here and here, and How Appealing collects lots and lots of links to other coverage here and here.

All these media reports suggest that the Justices were struggling in various ways to figure out how best to balance free speech concerns and legitimate interests in punishing "true threats" made on-line.  And folks can read up on these struggles in full via the transcript in Elonis v. United States which is available at this link.

December 1, 2014 at 11:43 PM | Permalink


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What I thought was the elephant in the room during that argument is the penalty that was imposed upon Elonis. What makes this case "hard" is the fact that we cannot set an standard and then assume the jury will apply it correctly. This isn't because juries are in revolt; it is because most cases never go to a jury. I found it telling that both sides wound up arguing about prosecutorial discretion. That is to say the real debate in the court wasn't about a standard the jury could apply, the real debate was about what kind of cases the government should bring.

So this is another instance where our addiction to plea bargains messes with the dynamics of the case. In a sane world we would be able to set a standard and they trust the jury to apply it. But the world we have is a world where we have to try and prevent the executive from running amok because they jury will never be involved. That's why I thought Scalia's final remark so interesting---strike down the law as applied because the penalty was too harsh but leave the actual standard intact. That way one cabins the Executive by making the cases not worth bringing in the first place, rather than upping the burden of proof. I don't like it. But most of the justices were clearly looking for a way out. They just have to settle on a way.

Posted by: Daniel | Dec 2, 2014 12:36:08 AM

Juries have for a long time had the discretion to "nullify" and that is an understood aspect of juries and probably one of the reasons we have them -- to serve as an additional check on excessive prosecution etc.

"Yet, the most recent and exhaustive study of the jury in criminal cases concluded that juries do understand the evidence and come to sound conclusions in most of the cases presented to them and that when juries differ with the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed."


I think judges also can find 'ways' when it seems warranted. Given certain crimes can lead to unfair prosecutions (do we prosecute some lame drunken bar 'brawl' as an assault? it's technically illegal), prosecutors will need to have discretion. I'm unsure if this case is somehow that special in that regard except that speech is protected more than some things, so a special degree of care is applied in this case.

Posted by: Joe | Dec 2, 2014 10:00:59 AM

This is a painfully acted farce put on by special ed students. I have solved this problem by applying the standard of an inchoate crime.

I dream of robbing a bank. I express my dream on Facebook. I have made no calls to other bank robbers, do not have a weapon, have not specified the bank, have not cased the place, etc. Spend effort and $thousands in taxes to prosecute me for expressing hopes and dreams? The feminist bank manager at the corner feels threatened because I am a productive male, demands my head.

Meanwhile, Gonzalez's husband is disobeying a court restraining order, threatening to kill the family, has a weapon, is at the house of Mrs. Gonzalez, has taken the girls, is calling to tell the police where he is, and these agents of the dumbass prosecutor refuse to act? And the Supreme Court says, no tort liability. That is OK, discretion.

Take home message? The protection of the criminal trumps the kowtowing to feminist tantrums. Why? The criminal generates more government make work jobs than the feminist tantrum and takes priority in the mind of the great thinkers on the Supreme Court. I find it hilarious that so much serious attention is paid to the badly acted farce of these special ed students.

If this case goes the way I think it will, I will be able to report and demand the prosecution of anyone accusing me of anything and threatening to put me on a list. "I feel threatened."

Posted by: Supremacy Claus | Dec 2, 2014 10:45:32 AM

"I'm unsure if this case is somehow that special in that regard except that speech is protected more than some things"

It's not that speech is more protected, it's the fact that speech is EVERYWHERE. Unlike bank robberies, which are few, or homicides, which are even fewer, speech happens all the time, every moment of every day. What jury thinks is not relevant because 90% of cases don't go to a jury. The only thing that matter is what the prosecutor thinks.

So if, (a) they only thing that matter is what a prosecutor thinks and (b) the prosecutor has free license to evaluate an activity that in constantly occurring everywhere then ergo (c) the prosecutor turns into a censor whenever and where ever he or she thinks that someone says something a reasonable person doesn't like.

Which of these three statements A, B, C do you think is wrong Joe?

Posted by: Daniel | Dec 2, 2014 2:20:42 PM

Violence is pretty much "everywhere" too on some level as is a range of things that are criminal, but only a limited subset of things are prosecuted because mere criminality alone is not enough to prosecute for a range of reasons. Even if it is not "everywhere," it and other crimes are broad enough. So, e.g., civil rights laws or environmental protection laws require some picking and choosing.

So, universality is to me not the sole determinant here that makes speech special, which I surely agree with given the 1A and personal sentiment. Anyway, the prosecutor is limited in various ways in his/her discretion, so "a" is at best exaggerated. As noted "b" doesn't just apply to this range of activity, putting aside "free" means "fairly free." Finally, 'like' doesn't mean "that's mean" or "unpopular' but serious enough to prosecute for various reasons, given the limits of "a."

This case is an example. The prosecution very well might be wrong because of lack of intent or whatever, but it isn't just because he said something racist or something. It was something that a reasonable person can take as somewhat threatening. Now, this might not be enough all things considered. But, mere dislike isn't the trigger. And, if actionable threats, whatever limited sense that is, is "censorship," okay. The 1A is not absolute. If you want to call stopping harassment of certain types or copyright infringement or violation of oaths in court "censorship" because speech is limited in some fashion, fine. I think you are using words a tad too loosely.

Posted by: Joe | Dec 2, 2014 3:03:35 PM

As an Internet user and student of Internet law, I would like to point out that the British high court has set forth a two-tiered analysis to be used in such cases. First, no "actus reus" has been committed unless a reasonable person would regard the communication in question as an actual threat. Second, if it is determined that an actus reus does exist, the further question needs to be resolved, whether the accused acted with a "mens rea," i.e., intended to publish a threat etc. The court's opinion can be read at:


See also the ongoing litigation involving New York's efforts to criminalize a batch of overly deadpan email parodies concerning an academic dispute. The documentation at


reveals that no standard of reasonability was applied here at all; rather, prosecutors urged that the defendant "knows how to twist language, stir up controversy," and encouraged the jury to follow its hunches about the allegedly sinister intent motivating the parodies. When jurors are allowed to speculate about intent while ignoring other reasonable explanations, injustices may result.

Two conclusions: (1) reasonability can play a role without intent being ignored; and (2) standards need to be worked out for determining what a defendant's intent was when "venting" online. Let's not forget that guilt must be proven beyond a reasonable doubt.

Posted by: Quixote | Dec 2, 2014 3:38:33 PM

Because reason seems central to this debate, I am repeating the comment inspired by Albeed on the word reasonable. I bet none of the Justices knows what has been taught to 10th grade World History students and college freshmen in Western Civ 101. As a service, whenever the lawyer is arguing about reason, I will repost this analysis of why the word, reasonable. is the central idea of the common law.

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 format of IRAC, the adversarial system, the format of the brief all came from Scholasticism. You and most lawyers learned about it 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, mortgaging, get it? 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. But we are still practicing the law of that guy.

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 3, 2014 4:17:59 AM

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