Below is my column today in USA Today on the decision of the Supreme Court to reject the Obama Administation’s argument for a low standard in criminalizing speech on the Internet and other forums. The Court did not have to directly deal with the free speech implications of the case since it ruled on the standard for criminalization. The Court rejected the lowest standard of a reasonable person in establishing a criminal threat. However, with the remand, the issue may come back to the Court under another effort to adopt an alternative standard of recklessness.
Winston Churchill once said that there is “nothing in life is so exhilarating as to be shot at without result.” The free speech community experienced precisely that sensation this week after the Supreme Court rejected a sweeping move by the Obama administration to criminalize some speech on the Internet and social media. Even as we dodge the bullet, many Americans will not realize how close this country came to following Europe in the criminalization of speech.
The case, Elonis v. United States, could not have had a less redeeming character at its center. Anthony Elonis, 31, was convicted for Facebook postings deemed threats of violence against his former wife and former colleagues. After his wife left him and he was fired from his job, Elonis began to post rap lyrics containing graphic violent language and imagery. For these juvenile and degrading postings, Elonis adopted the rap-style nom de plume “Tone Dougie,” to be his online persona while repeatedly disclaiming the lyrics as “fictitious” and not meant to bear “resemblance to real persons.” While he said “I’m doing this for me. My writing is therapeutic,” others saw the postings as intentionally threatening.
There is no question that Elonis has the mentality of an angry toddler. However, the Obama administration charged him with five counts of transmitting in interstate commerce “any communication containing any threat … to injure the person of another.” The administration argued (and the trial court and appellate courts agreed) that prosecutors need not show that Elonis intended these rap songs as threats. Rather, it argued that the government could criminalize any communications that a reasonable person deemed a threat.
That effectively flipped the standard from looking at the intent of the individual to how the statement is received or perceived under a “reasonable person” standard. While the Supreme Court did not conclusively state that the intent (or “scienter”) requirement requires an intent to threaten, it rejected the lower standard and remanded for the lower courts to consider whether “recklessness” could be used in such cases.
There was always more to this case than the dubious character of Anthony Elonis. Throughout the West, there has been an expanding rollback on free speech in the wake of violent protests by Islamic groups. While Western leaders, including President Obama, talked a good game of supporting free speech after murderous riots over the publication of cartoons or films depicting the prophet Mohammed, they have quietly ramped up prosecutions for those who exercise free speech. The most hypocritical moment came this year with the march featuring French President Francois Hollande and world leaders in solidarity with free speech after the massacre of journalists at the magazine Charlie Hebdo by Islamic extremists. The French government itself had been hounding the publication with criminal investigations in the years leading up to the massacre. After the march, it rounded up dozens of writers and speakers on hate speech charges under the same laws.
Obama has a similarly checkered past on free speech. His administration in the first term supported an international standard that would have allowed the criminalization of anti-religious speech.
Then in 2012, when a trailer of the low-budget movie Innocence of Muslims was put on YouTube, there was another global spasm of murder and arson by irate Muslims. While Obama insisted that the filmmaker, Nakoula Basseley Nakoula, had every right to make the film, he was thrown into a police car in handcuffs for technical violations of a probation on unrelated charges.
The Elonis case was a critical move to open the door to the type of criminalization of speech that is now common in Canada and Europe. Putting aside the actual prosecutions, it would have created a clearly intended “chilling effect” for everyone posting comments that they could be arrested if “reasonable people” would view their comments as threats.
The justices 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.” Though there are a few exceptions, the court said a guilty mind is “a necessary element in the indictment and proof of every crime.”
The 8-1 opinion written 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. However, it is still chilling that a federal trial judge and a panel of appellate judges were willing to dispense with this fundamental protection not only for criminal defendants but also for free speech. There continues to be growing pressure to criminalize speech on the Internet, and the Obama administration has been at best passive aggressive toward free speech protections. In this case, it was aggressively seeking a rollback.
The Elonis case is an example of how the government can use the least sympathetic characters to reduce free speech. Though this case dealt with the perceived threat to particular individuals, the establishment of a lower standard for the criminalization of speech could have been easily expanded. This will not be the last such attempt. In the end, the greatest losses to liberty come from self-inflicted wounds. This week we avoided such a fatal shot, but it came close enough to part our constitutional hair. Unless we become more vigilant, the next attempt by the government could prove more lethal to liberty.
Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors.