December 2, 2014

The notion that threats on the internet should get more freedom of speech protection than threats made elsewhere.

The Supreme Court seemed skeptical of that notion at oral argument yesterday in Elonis vs. United States.
[T]he spread of social media has led to an explosion of caustic speech and acerbic criticism that some may see as threatening. Most justices appeared to agree with a government lawyer who argued that online threats should... be taken as seriously as other threats....

In his appeal to the high court, his lawyer defended Elonis’ statements as free expression, comparing them to rap songs, which often contain violent images and language.

Chief Justice John G. Roberts Jr. said he was unswayed by that argument. Elonis can claim “it’s therapeutic or it’s art,” but that should not be enough to escape prosecution, he said.
The serious legal question seems to be about what needs to be proved about a criminal defendant's state of mind when the issue is not whether he intended to do the threatened act but only whether he intended to make the victim fear that he would do it. Can we just look at what he said and whether those words would make a reasonable person feel afraid or is something more needed, some other evidence of what he meant to do? Because he may have only meant express anger... to emulate Eminem.
The justices’ arguments Monday suggested the court may be ready to settle that question, potentially making it easier to convict those who post threatening messages.

Victims of domestic violence urged the justices to uphold the conviction. They said women who are stalked or harassed by ex-spouses and others deserve the protection of the law when threats are made.

Free-speech advocates supported Elonis, saying they worried about giving the government too much power to punish rants and offensive words.
ADDED: Here's the PDF transcript of the oral argument. Early on in the argument the lawyer for Elonis says that these days "people conduct their entire lives electronically," and Chief Justice Roberts says:
Yeah, you are going to find a lot of information on the cell phone that the guy is really angry at his ex­wife and ­­ and, you know, would like to see her suffer. And he's going to put it online, and then you are going to say, well, that was just therapeutic, as you said in your brief. It was therapeutic. Yes, of course, it shows that he was going to do something dangerous. It's a good thing that he had this outlet of the internet so he didn't have to do it... [A]ll he has to do is say understood your brief, it's therapeutic, it's a good
thing I could do this, or it's art.
The lawyer says what he wants is that it be shown that the defendant has notice that he has put the other person in fear, and then after that, if he continues, the speech is not protected.


chillblaine said...

We have to agree what constitutes a "reasonable person." Texan Justin Carter made a threat on Facebook while playing a video game and was tracked down by a "Canadian woman who saw the post [and] looked up Carter’s Austin address."

Hagar said...

The defendant's state of mind or intent is irrelevant. It is the result that counts.

Hagar said...

Perhaps I should say "stated" intent. The defendant, or rather his/her lawyer, could, of course, claim insanity, but no sane person should be able to claim that an obviously malicious act was intended to be just a "joke," or indeed, "art."

James Pawlak said...

If I advise the burning down of UW's Law School and go there with cans of gasoline and an explosive-timed unit, I have taken an overt step towards a criminal action and should be prosecuted. Otherwise, such an action (Like advocating the violent overthrow of the USA's government) is protected free speech.

Curious George said...

"Victims of domestic violence urged the justices to uphold the conviction. They said women who are stalked or harassed by ex-spouses and others deserve the protection of the law when threats are made."

What's that old rhyme again, oh yeah: "Sticks and stones..."

The Elder said...

Curious George seems to think that "words can never hurt me." He is wrong. Speech alone has long been held to be sufficient to commit a crime. Conspiracy to commit a crime may be just speech, after all.

Mr. Elonis' Facebook posts were deserving of both prosecution and conviction by a jury because they constituted a "true threat" to his ex-wife. Freedom of speech has never been held to protect all expressions, nor should it be. This was not a joke or artistic hyperbole. His post was calculated to place his ex-wife and others in fear for their safety. Why should they be expected to live with that fear?

Zeb Quinn said...

Bottom line, the government is just itching to regulate the internet one way or another. In the end, they'll be regulating it in all ways.

Clayton Hennesey said...

There's a scary downside to this we can already see on the horizon: criminalizing "causing someone to fear for their life or safety on the Internet."

You know, like I just did with this comment.

Beldar said...

At the SCOTUS level of oral argument, advocates have to be prepared to be immediately interrupted with questions from the bench — as this lawyer, Elwood, was.

Good appellate advocates understand that this creates opportunities.

Bad ones respond by being flustered, and some of them by stumbling into their "pet theories" instead of the arguments that could be supported by prior precedent.

This novel theory — that a person has a constitutional right to make any sort of threat whatsoever, so long as its not acted upon subsequently but it has been communicated effectively to produce the communication's intended effects — is the kind of thing a lawyer comes up with way too late on the night before oral argument if he or she's been studying too hard from Johnny Walker or Jim Beam.

It was a spectacularly clueless argument — crafted by someone who obviously has no clue whatsoever how appellate judges reach their decisions, much less how to persuade them as they go about that process.

Fortunately the First Amendment and its interpreting precedents will probably survive this legal malpractice, because on this sort of issue one bad advocate can't actually do that much harm. At the SCOTUS level, there's always a dissenting judge, a set of contrary-minded clerks, an amicus, or someone to make the proper argument for a client whose own lawyer is this unfortunate in his choice of responses to the Court's aggressive (and aggressively skeptical) questioning.

mccullough said...

Would this apply to public figures? Or is that understood as hyperbole?

The Godfather said...

The "on the internet" aspect of this case seems to me at most a sidelight. The real issue is apparently whether someone who is threatened has to prove that the threatener intended to cause fear (or at least whether the threatener can defend on the basis that he didn't think the threat would be taken seriously). That the threat was made on Facebook might be a factor in resolving the issue in a particular case, but it's hard to see how it could be dispositive in every case.

Ann Althouse said...

"The "on the internet" aspect of this case seems to me at most a sidelight."

I'm reading the whole argument, and...

1. It's a federal crime because the message was sent in "interstate commerce"... that is, everything on the internet is potentially a federal crime if it's readable as a threat.

2. Lots of people use the internet for day to day expression that includes fantasy, rap lyrics, ranting, humor... stuff that can be characterized as a threat if the feds don't like you.

Unknown said...

Google Sarah palin should be raped and let's see how many prosecutions there should be

Richard Dolan said...

Elwood is a seasoned advocate, a former Asst Solicitor Gen, and a former S Ct clerk (Justice Kennedy). Beldar's speculation that he was winging it at the podium is wildly off base.

The issue in the case was what the gov't had to prove to establish a 'true threat,' the unhelpful term coined by the Court in Watts v. US (a case involving a threat against LBJ during a draft resistance rally). Some years later, in Rogers v. US, the Court granted cert to decide the intent issue, but the case went off on other grounds. Marshall, joined by Brennan, wrote a concurring opinion saying that a reasonable persons standard for intent was insufficiently protective of First Amendment values -- it was essentially a tort standard that put the risk too heavily on suppression of speech. The last case in the SCOTUS was Virginia v. Black (2003), written by O'Connor. That was a cross burning case, and turned on a Virginia statute that created a presumption that a defendant intended to intimidate by burning a cross. The Court reversed, finding that such a presumption could not be squared with the First Amendment, since cross burning can be intended to communicate many different messages depending upon context. In setting up the discussion, O'Connor wrote a paragraph that suggested a subjective intent standard was required by the First Amendment, but because the case was focused on a different issue, the lower courts have mostly taken a different tack.

There were four different standards for measuring the required intent in play during the oral argument in Elonis: the defendant's purpose to induce fear in his targeted audience, the defendant's knowledge that his statement was likely to induce such fear, the defendant's reckless disregard of the probability that his statement would induce such fear, or simply whether a reasonable person hearing defendant's words in context would conclude that they were likely to induce such fear. But there was general agreement that, in order for a statement to qualify as a true threat, it must communicate the speaker's intent to inflict violence on whomever the speech was addressed to. (Given the agreement on that point, it's obvious why the intent issue is key.)

The Court has rejected arguments that the limits of the First Amendment are determined by the response of a speaker's audience or the offensive impact of speech on the audience (e.g., Snyder v. Phelps). Otherwise, speech would be free only if it was not offensive to some segment of the general population, creating in essence a listener's veto enforceable at will by a prosecutor. And the internet, being what it is, invites lots of truly outrageous commentary, some aimed at identifiable individuals (troll through posts about Sarah Palin in 2008 or about W in 2006, for instance), and some about gov't actors more generally. There is no speech code, enforceable by criminal prosecutions, governing what is allowed or not, and no one really suggests that there should be. After all, the point of sharp criticism is to make the person being criticized feel like he or she needs to change -- which many don't like at all. So how to distinguish between criminal speech and ordinary, off-the-wall nastiness?

It's not easy, but that is what this case is grappling with. It won't be the last word on the subject, but is quite likely to be the first.