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
Interesting discussion. I’m with JT on this, And I don’t see the threat to women that some have posted. I am very close to a women who over the past 11 years has had to put up with some pretty awful stuff from a certain man. While women are frequently the target of violent men and should be rightly protected, that is not what this is about. A women could post the same crap about a man as this looser did. The ability of a women to type is pretty much the same as a man, no need for brute strength to hit a few keys on a keyboard. There are certainly gender differences on how men think and women think. It may be that men are more likely to post violent rantings than women. But that is all it is, and if it can be shown that it was fictions writings, then indeed this is a free speech issue and the Government has no right to interfere. Does the aggrieved have a civil case against the creep? In my opinion yes. Is it criminal for this guy to do what he did? IMHO, No?
Reblogged this on Finding Truth In an Illusory World.
Alan West, Joe Walsh, Louie Gohmert, Ron Johnson, Trey Radel, ushered in with the Tea Party movement. Those guys are gems in the Tea Party crown.
DAVIDM2575
I don’t think the 11th hour failed attempt to torpedo Clarence Thomas’ nomination had any lasting negative impact on Thomas.
It’s been near 25, and people like Biden, Leahy etc. can’t always count on successfully “Borking” nominees they do not approve of.
Thomas, Dansforth and others put up a very vigorous defense against Hill’s accusations.
Those allegations, and the Tailhook incident where feminists sought to wreck hundreds of careers of top pilots ( extremely expensive to train/ produce a carrier pilot).
“A Tale of Two Paulas” goes into some detail about the gamemanship involved in smearing any male participant of that Tailhook convention. If there 10-20 participants who were indeed guilty if sexual harassment, expanding that number to 400, and insisting that willing female participants at a wild party were all victims, was an effective political game leading to “the year of the woman” victories.
Patty Murray of WA. and Carol Mosley Brown from Chicago? were two who rode the “women as victims” campaign into office.
Rep. Pat Shoeder, Jill Ireland, Jean Lewis and others stated that ” men just didn’t get it”……..i..e., the seriousness of real and bogus sexual harassment allegations.
“Troopergate” in 1994 reveal some interesting patterns of behavior on tge part of Slick Willy.
Later allegations of sexual harrassment/ sexual assault involving Juanita Broderick, Paula Jones, and Kathleen Willey were dismissed and discredited by these same “feminists” who cashed in on allegations against Clarence Thomas and male attendees of the Tailhook Convention.
A common refrain I heard was that the allegations against Clinton involved “his own personal business/behavior”.
It was politically expedient to exploit and magnify the allegations related to Thomas and Tailhook, but feminists mostly stumbled all over themselves to give Slick Willy a pass.
Anyway, I think the impact if Anita Hill/Tailhook incidents had a big impact POLITICALLY in 1992 and beyond….but I don’t think it did lasting damage to Clarence Thomas. The transparent 11 th hour attempt to “Bork” Clarence Thomas actually backfired.
But the political “payday” came with the election of numerous “unknown” and inexperienced women to Congress in 1992.
Boy……..did we just dodge the ” SHARIA LAW” bullet.? I’m sure Hillary will see its enforced…….along with destroying emails……
I’d like to thank you Professor Turley for bringing this down to earth.
Earlier today I read both Volokh and Kerr and their posts, while I am sure accurate, were still a bit too much in the stratosphere for me.
I was curious as I read them, that neither mentioned “mens rea” and while I certainly have not a clue as to what that truly means it seemed the gist of what they were saying. And I still am not sure the difference between mens rea and “scienter”, but at least one internet source said they are interchangeable.
Let’s see.
The SCOTUS ruled against criminalizing Internet free speech which is protected by the Constitution.
After Chief Justice Taney informed Abraham Lincoln that he didn’t have any authority to suspend Habeas Corpus, and it was clear that states had a right to separate or secede before government was established, and that Lincoln had no authority to declare war, and that Lincoln had no authority to confiscate private property, and that fraudulent amendments were made without a quorum, through coercion and under the duress of war and “Reconstruction,”
why didn’t the SCOTUS rule against the entire Lincoln “Reign of Terror?”
Does the SCOTUS “interpret” the Preamble, Constitution and Bill of Rights to say that the executive and judicial branches of government can do anything they want?
Where are the “checks and balances?”
Where is the impeachment of “officials” for High crimes and Misdemeanors?
Where is the real American SCOTUS?
The SCOTUS ruled against criminalizing Internet free speech.
It has a whole lot of work yet to be done.
Peter Hill, Should a wife who petitions for divorce feel threatened. I prefer the Lincoln “Reign of Terror” analogy. Lincoln’s wife, the Confederacy, petitioned the court for divorce but her husband, Abraham Lincoln, used brutality and violence to force her to stay in his home and remain his loyal wife; even though other wives were being granted divorces (Mrs. Virginia, Mrs. Pakistan, Mrs. Bangladesh, Mrs. USSR were examples – Mrs. Scotland reconciled) and history has shown that divorce is a God-given right; a natural right that existed before government was established.
The same is true of secession.
When I was connected with the FCC, we had strict standards to adhere too. It took intelligence and creativity to get our point out to the audience, but we did it without threats, foul language, or grulesome details. To threaten and call names or use profanity meant being sued for slander in the judicial system.
I miss those days.
Should an ex-wife feel threatened when her former husband writes this on Facebook: ‘‘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.’’
This was just one the statements Defendant Elonis made. After his ex-wife obtained a restraining order, Elonis wrote: “Is it thick enough to stop a bullet?”
Professor Turley sees no harm in these statements. Like women should just blow them off as basic macho posturing. And comments on this thread reveal such hatred for Obama, that readers applaud this ruling as a victory for ‘free speech’.
Peter Hill – he kept saying they were fictitious.
Old Obama, he’s persistent. And consistent.
And the FBI came to visit him when he posted about shooting up a kindergarten.
We did dodge a bullet with this one. But it reminds me of why I gave up practicing environmental law which is packed with intentional [criminal] polluters. For different reasons having to do with power money politics and corruption, corporate polluters are never prosecuted. Prof. Turley, take a look !
This Administration loves blasphemy laws, and hates free speech. Jan 2017 cannot come quickly enough.
“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.'”
Any Commerce Clause gurus, please correct me. How on earth does this type of conduct, even were the entire population of Delaware in its aggregate threaten someone in unison, substantially affect interstate commerce? 18 USC sec. 875(c) has Jefferson and Madison rolling over in their tombs for the Supreme Court’s lunar leap in constitutionally sanctioning this kind of legislation. If guns in school zones don’t substantially affect interstate commerce, this sure as heck doesn’t.
This is a state-law matter or at least it should be.
stevegroen – one of the better ditties is about an female FBI agent who came to talk to him. Hence the federal nexus.
Americans understand their Preamble, Constitution and Bill of Rights.
The first mistake of the judicial branch is to assume the authority to legislate. The judicial branch believes it has a superior ability to read the English language of the Founders, to “interpret” and to dictate to Americans the meaning and definition of words.
The duty of the judicial branch is to assure that actions comport with law – simple comparison.
Board games have existed for more than 5,000 years. Monopoly alone has sold 275 million games. Americans know how to read and play by the rules. Americans know how to read and understand what the Founders wrote and meant.
It is well past time to put “teeth” in the American “checks and balances” and to swiftly wield the tool of impeachment of “officials.” It is corrupt to profit from official positions. It is far worse to “modify” the literal and fully comprehensible words of the Founding Fathers and the Authors of the Preamble, Constitution and Bill of Rights.
Freedom of Speech.
NOT,
Freedom of Speech With Specific Criteria Applied.
Possibly, most egregious is the dismissal, by the judicial branch, of the very essence of American governance, the Preamble, which severely limits government itself. It is impossible to think that the Constitution was preceded by a Preamble that was intended to be ignored.
If the Preamble is given legitimacy and full weight, America looks like it did in 1789.
Justice, Tranquility, Common Defence, Promote Genera Welfare (i.e. utilities).
Every other endeavor being private, including the charity/welfare/redistribution industry – the “blessings of liberty to ourselves and our posterity” (not to government) are freedom and free enterprise without interference by government.
The American thesis is Freedom and Self-Reliance.
That looks like 1789.
forgotwhoiam – let’s be honest here. How many times have you played Monopoly and either cheated yourself or one of the other players cheated? Americans don’t always play be the rules. 🙂
One must wonder if Anita Hill left her scars on Justice Thomas during his confirmation hearings. Certainly Justice Thomas had some experiences in life that has led him to view this case in the way that he has.
Woo Hoo!
Well, if Big Brother can’t have his dragnet…
Justice Thomas expressed the issues pretty succinctly:
That being said, I am glad that the government has to prove more, not less, in its prosecutions. Sooo many laws don’t seem to require any real malicious intent, anymore.
Squeeky Fromm
Girl Reporter