The Supreme Court has handed down its decision in Elonis v. United States, a case that had sweeping implications for free speech on the Internet. The Obama Administration sought to establish a low standard for criminalizing speech based on a reasonable person standard that would have gutted the requirement of scienter or intent in establishing a criminal threat. The Court adopted the narrowest basis to remand the case but it clearly rejected the lower standard sought by the Administration. In doing so, free speech dodged a bullet today and the Obama Administration came perilously close to rolling back on protections for free speech on both the Internet and social media.
The case involved Anthony Douglas Elonis, 31, who was convicted for postings on Facebook that were deemed threats of violence against his former wife. After his wife left him and he was fired from his job, Elonis (who is an extremely unsympathetic and obnoxious character) began to post rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, and law enforcement. While he posted statements that these posts were “fictitious” and not intended to depict real persons, his employer however saw them as threatening and called the police. He was charged with five counts of violating 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”
The Obama Administration argued that there was no need to show subjective intent on the part of Elonis and that the statute’s inclusion of the word “threat” only requires a showing that a reasonable person would take the words as “intent to do harm.” That effectively flips the standard to how a message is received as opposed to given. The Court refused to gut the standard:
In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.” Morissette, 342 U. S., at 252.
The Court found that the Administration was seeking a fundamental change in the standard required to convict someone of a crime. The Court cited the long-standing principle that “wrongdoing must be conscious to be criminal.” While there are a few exceptions, the Court said that this country has imposed the “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.”
The 7-2 decision by Chief Justice John Roberts does not end the threat to free speech but it certainly avoids the worst case scenario in foreclosing the use of the lowest reasonable person standard.
The Court decided to allow the lower court to decide whether recklessness would be enough as a standard for a criminal charge – meaning that this issue will likely come before the Court again. The Court was able to avoid the free speech issues in the opinion for now but a return of the issue could put those issues front and center in the appeal. However, for now, the worst case scenario was avoided in this latest defeat by the Obama Administration.
Here is the opinion: Elonis
Of course, the judicial branch “legislated from the bench” when it rewrote the 1st amendment. The court arbitrarily applied criteria when no criteria are stated in the amendment.
Constitutional law is artificially and unconstitutionally modified by a court when it requires intent and egregiously claims that it can determine intent.
Like the right to privacy of “papers” in the current NSA phone surveillance program, Americans have the right to freedom of speech.
Redress of grievances is limited to the parameters of the Preamble, Constitution and Bill of Rights. Specific damages for speech may be litigated.
The American people, including the judicial branch of government, must adapt to and live with the consequences of freedom.
The judicial branch has no authority to legislate, including “modification,” and is charged with assuring that actions comport with law. Literally. No more. No less.
Implementing “case law” and “precedent” of unconstitutional decisions is also unconstitutional.
Freedom of Speech means precisely that.
The People may insult the King,
without modification or interference, governmental or otherwise.
I never figured out how to post a link on JT’s website, but I think the courtroom scene from THE LOVE GOD? with Don Knotts and James Gregory can be viewed online. Maybe youtube.
It is probably the most hilarious courtroom scenes I’ve ever watched ( Jack Lemmon and Terry Thomas were also great in HOW TO MURDER YOUR WIFE).
The Love God? courtroom scene deals with First Amendment/obscenity issues.
This was Nat Hiken’s final work…he unfortunately died of a heart attack in 1969.
George Kennedy knew him from the Phil Silvers/Sgt. Bilko days. Kennedy desribed him as “one of the few true geniuses he ever met in show business.”
Sorry. That judge didn’t make a ruling. It was jury instructions.
I do believe they were defending the verdict and the original jury instructions. There was a ruling by the judge on the instructions, right?
Bailers,
Here’s what happened.
Way back when a judge (not Obama) made a ruling. The defendant didn’t like it. It had to do with a new medium – the internet. The defendant appealed. It went to the Supremes. They decided the first judge was in error.
Happens all the time. It was not a “huge blow” to this administration. I doubt if 10% of the regular frenzied crowd here had heard of the case. Turley writes a big headline – and wham – James Madison smiles down from heaven and the community organizer is vanquished.
Meh.
I do believe that the administration defended the original verdict, that was done by Holder and Obama, so yes, it is another loss for Obama.
Hey I could get behind a total ban of rap music by the Supreme Court. Make it so!
Bailers,
I have a passing understanding of hypocrisy.
Turley is proud of the reach and influence of his blog. Please note the right hand column of the blog and his postings of another 10 million hits. I don’t know how he can reconcile the way he applies the First Amendment on his blog. He is certainly entitled to his own rules – they just are in conflict with what he says he fights for.
For an Administration run by a Constitutional law professor, the Government sure doesn’t seem to like Constitutional limitations or protections. Or at least, for those not part of an aggrieved class.
I’m wondering how this affects the Justin Carter case in Texas. His nightmare has been going on for two and half years now.
Wadewilliams
1, June 1, 2015 at 12:54 pm
Further, you can bet your life that Turley, the great defender of the First Amendment, would never permit a commenter to post similar attacks against another commenter.
—————-
On his private blog, he doesn’t need to. I hope you can see the difference between a private person and a governmental entity. Otherwise you suffer from a severe lack of understand about the first amendment, and freedom of speech in general.
Hey, Schulte. How about digging up Eonis’ post about shooting up a kindergarten class? You’ll probably find it in your Top Ten bin.
No surprise that Schulte really enjoys the stuff that Elonis posts.
You always have to appreciate talent.
Further, you can bet your life that Turley, the great defender of the First Amendment, would never permit a commenter to post similar attacks against another commenter.
On the one hand Turley rails against the rights and abuse of women in the Middle East. On the other hand, this case was one that many see as an attack on a woman and whose outcome make women more vulnerable to jerks like Elonis.
And there is no doubt Elonis is an enormous jerk – that is probably an unanimous decision.
“You know your s***’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent lady stood so close
Took all the strength I had not to turn the b**** ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms of her
partner
[laughter]
So the next time you knock, you best be serving a
warrant
And bring yo’ SWAT and an explosives expert while
you’re at it
Cause little did y’all know, I was strapped wit’ a bomb
Why do you think it took me so long to get dressed
with no shoes on?
I was jus’ waitin’ for y’all to handcuff me and pat me
down
Touch the detonator in my pocket and we’re all goin’
[BOOM!]
Are all the pieces comin’ together?
S***, I’m just a crazy sociopath
that gets off playin’ you stupid f***s like a fiddle
And if y’all didn’t hear, I’m gonna be famous
Cause I’m just an aspiring rapper who likes the
attention
who happens to be under investigation for terrorism
cause y’all think I’m ready to turn the Valley into
Fallujah
But I ain’t gonna tell you which bridge is gonna fall
into which river or road
And if you really believe this s***
I’ll have some bridge rubble to sell you tomorrow
[BOOM!][BOOM!][BOOM!]”
You got to admit the guy can lay down some beats. 😉
Ha, Alito and Thomas dissenting, quelle surprise.
inga – it is not that they dissented, but why they dissented.
Here is a less politicized report on the decision from a respected reporter on the Court, Dahlia Lithwick:
“Today, the court reversed Elonis’ conviction and kicked the case back to the lower court, which the justices say had erred in its jury instructions. The majority found that it’s not enough that a “reasonable person” would understand his threats to be threats. He had to have some intent. This is a higher standard and one to which the government and women’s groups strongly objected, arguing that this leaves women vulnerable to dangerous online abuse. The Chief Justice, writing for the majority, explained that the First Amendment issues in the case, about whether these kinds of lyrics are protected speech or not, need not be reached. The ruling represents the narrow refinement of a criminal statute, not a sweeping proclamation of new rules governing rap lyrics or online threats.”
http://www.slate.com/blogs/the_slatest/2015/06/01/elonis_v_united_states_supreme_court_overturns_conviction_of_man_who_wrote.html
Turley neglects the vote: 7 to 2 Alito and Thomas dissenting
Obama is our times’ version of FDR.
Whether you consider that good or bad is another thing.
So does this mean that the guy who was arrested for his rap lyrics because they “described crime”, which makes him part of the criminal enterprise will be getting off? I hope so. Maybe once the lower court makes a more secure ruling.
The Obama administration seems to be vying with the Bush administration as the worst abuser of the Bill of Rights.
Don’t know who will win that battle, but I do know who is the loser – the American Constitution.
And on another note, the FCC is going to be charging you more for YOUR internet so it can give free internet to the same people it gave Obamaphones to. The Obamanet is almost here.