Supreme CourtBelow 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.

205px-Winston_Churchill_1941_photo_by_Yousuf_KarshWinston 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.


  1. Can you who preach free speech all gather in a crowded theatre someplace so that I can come and yell Fire! ?

  2. DBQ

    On the law, I am in full agreement with you. We should be Hugo Black vigilant when it comes to the first amendment free speech rights.

  3. My writing was unclear.

    I mean that the trend to roll back free speech and criminalize speech in general is/was already existing. However the violence by Muslim groups to try to suppress free speech has encouraged the “corrupt presidents, prime ministers, and dictators across the world” to jump on the band wagon and further criminalize and suppress speech.

    The trend already is there and dictators love nothing more than to keep the people quiet. The perpetually offended also want to keep people from being able to express their views or political opinions.

    This is not to excuse those who truly are making threats and INTEND to harm.

    The issue is the criminalization should not be about how the offended FEEL but in what manner the speaking was INTENDED.

  4. DBQ

    Semantics can be very fun.

    What’s the article after this about? Decrying governments led by Muslims for acting similar to our government, just not nearly as outrageous and extreme (Snowden is stateless).

    Not acknowledging the activism that is nationalism/state power over human and minority rights on this blog is disingenuous to me. It’s not a wrong position to be for a strong nation and great state power, but that’s the foundation here. Look at the top poster. It’s not a bad thing, but all blogging/journalism is a form of activism and implicitly has bias.

  5. What is interesting and perhaps the most critical issue here is how would this have been handled during the months following 9/11? The perception of threat is tied to the demands for individual freedoms, of speech, expression, etc. The invasion of Iraq was a criminal mistake in which most Americans participated. It is only when distanced from 9/11 and having experienced almost a generation without an attack that freedoms that would have been readily and voluntarily curtailed are rising their theoretical prominence once more.

    It is a fine line, one that if the ‘free speech’ of this nut job was to be worded slightly differently would have seen the court vote to limit it. However, when you need an enemy you need to create dastardly things that your enemy either does or is capable of.

  6. Throughout the West, there has been an expanding rollback on free speech in the wake of violent protests by Islamic groups.”

    I can read too. What a coincidence! 🙂

    “Expanding roll back.” Does not mean that the cause of the expansion of an existing trend. ( (..violent protests by Islamic groups.) …is not the sole reason for the trend. A trend that pre-existed the protests, in the first place.

    It is a reason that the expansion of the trend is accelerating, but it is not the cause.

    Semantics can be fun.

  7. “Throughout the West, there has been an expanding rollback on free speech in the wake of violent protests by Islamic groups.”


    i can read. You see the sentence. That’s using the pre-textual reason that’s given my corrupt presidents, prime ministers, and dictators across the world. They cite Islamic groups, but it isn’t legitimate.

  8. @ Tjustice

    Pointing out and example of the Muslims as being offended by their perception of sometimes innocent speech or actions…… instead of the intent of the speech is not blaming the Muslims for loss of free speech rights. It is an example of how this would work if the rule were turned on its head as JT discussed.

    There are other examples of the perpetually offended or the touchy triggered wilting violets who also perceive almost everything, including non verbal speech as being threatening or offensive. If you can be criminalized for how other people receive your words or actions instead of the intent behind your words or actions, then almost anything can be a danger. Speaking in public, writing on the internet, wearing t shirts with NRA verbage, baking devils food chocolate cakes and bringing them to work (look it up) can be considered threatening.

    If we go down this road where the offended and hyper sensitive can criminalize anything based on how they “feel” then we are in very very big trouble as a society. The fetal position will need to be assumed.

  9. DBQ … have to agree. My experience is that ignoring those who make physical threats, sans credible intent and means, works best. It did at LGF.

  10. Great Article. Why i started coming here is for articles like this.

    Except pinning blame on Muslims for loss of free speech rights… Congress is not full of Muslims making laws, the courts are not full of Muslims interpreting those laws. Don’t feed the propaganda machine.

  11. flipped the standard from looking at the intent of the individual to how the statement is received or perceived

    This is the crux of the matter and I am glad/relieved that the court refused to uphold this ‘new’ standard that the perception of the speech is more important than the intent.

    Given how touchy feminists are, how perpetually offended the Muslims are, how everyone seems to be swooning under the assault of triggering words in the form of Ovid or Shakespeare……..ANYTHING you say or type can be illegal when received by these wilting violets.

    Jokes that are slightly off colour or insensitive would offend and be considered threatening. Comedians of the past, Don Rickles, Lenny Bruce….heck….even Milton Berle could be indicted under these ridiculous rules.

    IF the courts do uphold the right of the perceiver to be threatened by any and all speech, we might as well all just curl up into little fetal balls and suck our thumbs.

  12. Some time ago, back in the LGF days, I recall a commenter who regularly threatened physical harm to others, frequently directly by name or “nick”, on the site…and posted photographs of his prowess and implements to do so. Was that too much? Did that make his threats credible? Don’t know. I generally “thank” those who threaten me, simply because if it comes to pass, I will know they are coming….always an advantage.

  13. They just wanted him because he made fun of the female FBI agent. Now, if we go to this lower standard, a lot of rioters could be charged with this statute, some with international terrorism.

  14. So the ex-wife should start posting vulgar cartoons of Mohammed, signed by “Anthony Elonis.” End of the threat of Anthony, and everyone gets his/her freedom of speech and creativity. What a country!

  15. Superb column. The cultists are frightened about this failed President’s legacy. We normal people are frightened about our Constitution.

  16. During Obama’s acceptance speech, he says “let me express”. When played in reverse,
    Obama tells America to serve Satan. Take a listen, its his voice.

  17. I understand the appropriate legal term (used in many articles about Elonis) was “true threat”.

    In my understanding what a true threat is, would I misrepresent it if I called it a “credible threat”? If so, how does “credible threat” differ from “true threat”?

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