Narrow Win for Speech in Online Threats Case

The U.S. Supreme Court mentioned rappers or rap music nine times in its long-awaited June 1 ruling on the prosecution of threats posted on Facebook. The court even cited “the well-known performer Eminem” for the first time in its history.

But the court did not give a First Amendment embrace either to rap music or to Facebook postings that mimic the genre. Instead, the court avoided the First Amendment altogether in Elonis v. United States, No. 13'983. Much to the chagrin of speech advocates who hoped the justices would give wide berth to the range of expression in modern-day media, social and otherwise.

“Elonis was a great opportunity missed, both to clarify what constitutes an unprotected threat in First Amendment jurisprudence and to suggest how threats conveyed on social media may be different,” said Clay Calvert, a mass communications professor at the University of Florida and lawyer who filed a brief in the case asking the court to protect rap artists. See, http://bit.ly/1Go2dtU.

In a narrow opinion for a 7-2 majority, Chief Justice John Roberts Jr. said the federal law against threats requires the government to prove more than the mere fact that a defendant was negligent in making threatening remarks, or that a reasonable person would regard the statements as a threat. Anthony Elonis had been prosecuted under the law for angry Facebook posts that the government said constituted threats against his estranged wife and others because a “reasonable person” would have viewed them as such.

Lawyers for Elonis, represented by John Elwood of Vinson & Elkins in the high court, argued that the First Amendment requires a higher level of proof ' an intent to threaten or a criminal state of mind ' or else a range of edgy expression, including some rap lyrics, could be chilled for fear of prosecution.

Roberts agreed that something more is needed, but as a matter of statutory interpretation, not because of the First Amendment. “Given our disposition, it is not necessary to consider any First Amendment issues,” Roberts wrote.

Others, including the two dissenters on the court, said the majority left it unclear just how much “more” government prosecutors need to prove. “Our job is to decide questions, not create them,” Justice Clarence Thomas wrote in his dissent, chastising the majority for discarding a standard adopted by nine federal circuit courts while leaving “nothing in its place.”

Limited Ruling

Vanderbilt University Law School professor Suzanna Sherry said that the Elonis ruling fits the Roberts Court's trend toward “the narrowest possible rulings. Certainly this is very narrow. Not only did they not decide any constitutional issue, they didn't even decide what level of criminal intent is necessary ' just that negligence is not enough.”

The ruling was so inconclusive that University of California at Los Angeles School of Law professor Eugene Volokh said on his Volokh Conspiracy blog: “As best I can tell, the Supreme Court did not resolve the federal circuit court disagreement on the First Amendment issue that helped persuade the court to hear the case.”

Indeed, in two threat cases decided after the High Court granted review in Elonis in June 2014 ' one from Colorado and the other from Utah ' the U.S. Court of Appeals for the Tenth Circuit decided not to wait for the Supreme Court and proceeded to issue opinions on the statutory question. See, “In This Facebook Threats Case, No Wait for Supreme Court,” NLJ. Both decisions said prosecutors needed to prove intent to threaten ' a conclusion that does not appear to run counter to the Elonis decision.

The Elonis ruling still won praise because it raised the bar of proof needed in threat cases, making it less likely that social-media posters will be punished for messages that were meant as a joke, satire or even rap lyrics. Elonis had pointed to an Eminem song in which he fantasized about killing his ex-wife as an inspiration for his own postings.

“The decision certainly is a victory for rappers who are prosecuted under the threat law. No longer do they need to worry about how a fictitious reasonable person would understand the lyrics,” says the University of Florida's Calvert. “That was always a huge concern ' just what is the mythical reasonable person supposed to know about the conventions of rap music? What is disappointing is that the decision only applies to this one federal statute.” Rappers can still be prosecuted under state threat laws, Calvert said.

New Jersey radio “shock jock” Hal Turner said last week that the Elonis ruling gives him hope that he can erase his own conviction under a similar federal threat statute. He was convicted under the law in 2010 because of his online suggestion that three federal Seventh Circuit judges “deserved to be killed” for a ruling that upheld a handgun ban. See, “Hal Turner Fights (Again) To Clear His Name After U.S. Supreme Court Ruling,” NJ.com.

The impact of the ruling on Elonis himself is uncertain. He served his 44-month prison term and was released in February 2014. Elonis was recently arrested on assault charges and is in jail in Northampton County, PA. See, “Freemansburg Man Convicted in Federal Facebook Threat Case Now Charged in Domestic Assault,” The Morning Call.

Elonis' local lawyer, Ronald Levine, a principal at Post & Schell in Philadelphia, called the Supreme Court ruling “an important victory, not only for Mr. Elonis but for others in danger of losing their freedom over words they uttered. We are pleased with this result.”

But not everyone was pleased with the decision. Mai Fernandez, executive director of the National Center for Victims of Crime, said in a written statement: “The Internet is the crime scene of the 21st century. The laws governing social media require swift interpretation to keep pace with the ever advancing criminal activity in this space. The justices today missed the opportunity to define the law and left the victims of this case and others in jeopardy.”

Tony Mauro covers the U.S Supreme Court for ALM Media.

The U.S. Supreme Court mentioned rappers or rap music nine times in its long-awaited June 1 ruling on the prosecution of threats posted on Facebook. The court even cited “the well-known performer Eminem” for the first time in its history.

But the court did not give a First Amendment embrace either to rap music or to Facebook postings that mimic the genre. Instead, the court avoided the First Amendment altogether in Elonis v. United States, No. 13'983. Much to the chagrin of speech advocates who hoped the justices would give wide berth to the range of expression in modern-day media, social and otherwise.

“Elonis was a great opportunity missed, both to clarify what constitutes an unprotected threat in First Amendment jurisprudence and to suggest how threats conveyed on social media may be different,” said Clay Calvert, a mass communications professor at the University of Florida and lawyer who filed a brief in the case asking the court to protect rap artists. See, http://bit.ly/1Go2dtU.

In a narrow opinion for a 7-2 majority, Chief Justice John Roberts Jr. said the federal law against threats requires the government to prove more than the mere fact that a defendant was negligent in making threatening remarks, or that a reasonable person would regard the statements as a threat. Anthony Elonis had been prosecuted under the law for angry Facebook posts that the government said constituted threats against his estranged wife and others because a “reasonable person” would have viewed them as such.

Lawyers for Elonis, represented by John Elwood of Vinson & Elkins in the high court, argued that the First Amendment requires a higher level of proof ' an intent to threaten or a criminal state of mind ' or else a range of edgy expression, including some rap lyrics, could be chilled for fear of prosecution.

Roberts agreed that something more is needed, but as a matter of statutory interpretation, not because of the First Amendment. “Given our disposition, it is not necessary to consider any First Amendment issues,” Roberts wrote.

Others, including the two dissenters on the court, said the majority left it unclear just how much “more” government prosecutors need to prove. “Our job is to decide questions, not create them,” Justice Clarence Thomas wrote in his dissent, chastising the majority for discarding a standard adopted by nine federal circuit courts while leaving “nothing in its place.”

Limited Ruling

Vanderbilt University Law School professor Suzanna Sherry said that the Elonis ruling fits the Roberts Court's trend toward “the narrowest possible rulings. Certainly this is very narrow. Not only did they not decide any constitutional issue, they didn't even decide what level of criminal intent is necessary ' just that negligence is not enough.”

The ruling was so inconclusive that University of California at Los Angeles School of Law professor Eugene Volokh said on his Volokh Conspiracy blog: “As best I can tell, the Supreme Court did not resolve the federal circuit court disagreement on the First Amendment issue that helped persuade the court to hear the case.”

Indeed, in two threat cases decided after the High Court granted review in Elonis in June 2014 ' one from Colorado and the other from Utah ' the U.S. Court of Appeals for the Tenth Circuit decided not to wait for the Supreme Court and proceeded to issue opinions on the statutory question. See, “In This Facebook Threats Case, No Wait for Supreme Court,” NLJ. Both decisions said prosecutors needed to prove intent to threaten ' a conclusion that does not appear to run counter to the Elonis decision.

The Elonis ruling still won praise because it raised the bar of proof needed in threat cases, making it less likely that social-media posters will be punished for messages that were meant as a joke, satire or even rap lyrics. Elonis had pointed to an Eminem song in which he fantasized about killing his ex-wife as an inspiration for his own postings.

“The decision certainly is a victory for rappers who are prosecuted under the threat law. No longer do they need to worry about how a fictitious reasonable person would understand the lyrics,” says the University of Florida's Calvert. “That was always a huge concern ' just what is the mythical reasonable person supposed to know about the conventions of rap music? What is disappointing is that the decision only applies to this one federal statute.” Rappers can still be prosecuted under state threat laws, Calvert said.

New Jersey radio “shock jock” Hal Turner said last week that the Elonis ruling gives him hope that he can erase his own conviction under a similar federal threat statute. He was convicted under the law in 2010 because of his online suggestion that three federal Seventh Circuit judges “deserved to be killed” for a ruling that upheld a handgun ban. See, “Hal Turner Fights (Again) To Clear His Name After U.S. Supreme Court Ruling,” NJ.com.

The impact of the ruling on Elonis himself is uncertain. He served his 44-month prison term and was released in February 2014. Elonis was recently arrested on assault charges and is in jail in Northampton County, PA. See, “Freemansburg Man Convicted in Federal Facebook Threat Case Now Charged in Domestic Assault,” The Morning Call.

Elonis' local lawyer, Ronald Levine, a principal at Post & Schell in Philadelphia, called the Supreme Court ruling “an important victory, not only for Mr. Elonis but for others in danger of losing their freedom over words they uttered. We are pleased with this result.”

But not everyone was pleased with the decision. Mai Fernandez, executive director of the National Center for Victims of Crime, said in a written statement: “The Internet is the crime scene of the 21st century. The laws governing social media require swift interpretation to keep pace with the ever advancing criminal activity in this space. The justices today missed the opportunity to define the law and left the victims of this case and others in jeopardy.”

Tony Mauro covers the U.S Supreme Court for ALM Media.