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November 26, 2014

Some effective overview/previews of SCOTUS case Elonis v. United States

I hope everyone has/had a great holiday break and that perhaps a few folks are interested in reading up more about the interesting Supreme Court criminal case to be argued next week. As students should recall, I briefly discussed Elonis v. United States in class, and the last extra credit opportunity involves discussing critically one of the many amicus briefs submitted in the case.

Not surprisingly, the upcoming oral argument is generating discussion about the case, and these two recent media accounts seemed worth noting in this space:

The SCOTUSblog posting provide this helpful summary of the case and its legal basics:

[Anthony] Elonis’s legal troubles date back to 2010, when his wife left him, taking their two young children with her.  He began to post lyrics from popular songs on Facebook, and he soon moved on to post his own, sometimes violent, rap lyrics.  As part of his posts, Elonis included disclaimers about how his lyrics were merely fictitious, and that he was just “exercising his constitutional right to freedom of speech.”  He also sometimes included links to the Wikipedia entry on the First Amendment and even the text of the First Amendment itself.

In the fall of 2010, Elonis’s Facebook posts included several that discussed harming his ex-wife.  One post was a take-off on a comedy routine available on YouTube: Elonis asked his Facebook friends whether they knew that it was illegal for him to say that he wanted to kill his ex-wife, and he added that it would be “incredibly illegal” to suggest that someone could kill his ex-wife by firing a mortar launcher from the cornfield behind her house. A day later, Elonis put up a post about shooting a kindergarten class.

These posts earned Elonis a visit from an FBI agent.  After the visit, he posted about that encounter too, suggesting in rap lyrics that he had strapped a bomb to his body and would have detonated it if he had been arrested.  This post was apparently the last straw for the FBI: a few weeks later, Elonis was arrested and charged with violating 18 U.S.C. § 875(c), which makes it a crime to communicate threats in interstate commerce — for example, over the Internet.

Elonis claimed that the charges against him should be dismissed because you can only violate the law if you intend to harm someone.  And he didn’t have any plans to hurt his ex-wife, the FBI agent, or anyone else: his rap lyrics and “venting” about his problems on Facebook just made him feel better.  But if he can be convicted without any intent to hurt anyone, he added, that would violate the First Amendment.  A federal trial court rejected both of his arguments.  Instead, it instructed the jury, it could find Elonis guilty if the average person, looking at a statement objectively, would believe that it was intended to be a threat.  The jury convicted Elonis, and he was sentenced to nearly four years in prison....

In his briefs at the Supreme Court, Elonis argues that a “threat” by its very nature requires an intent to cause fear.  Because the whole point of a crime, he says, is that the defendant meant to do something wrong, the Court has interpreted criminal laws as requiring a wrongful intent even when they did not explicitly do so.  Making it a crime to threaten someone even if you didn’t intend to hurt them, he contends, would cause people not to speak at all, because they would be worried about whether they could go to jail based on a jury’s possible misinterpretation of their comments.  This is particularly true, he concludes, when you are talking about alleged threats on social media and email, where nuance and tone matter so much and it’s so easy to misconstrue what someone says.

The federal government counters that, as the trial court in this case instructed the jury, courts should determine whether something is a “true threat” by looking at whether an average person would interpret the statement as reflecting a serious intent to harm someone. The government emphasizes that courts and juries can and should look at the context in which the alleged threat was made, and at the reactions of the people who heard the alleged threat, but they should not consider whether the defendant himself actually intended to carry out the threat.  This, the government explains, is because even if Elonis didn’t intend to harm his ex-wife or the FBI agent, they were still afraid and their lives were still disrupted: the First Amendment doesn’t protect him even if he knew that he didn’t mean to carry out the threats.

November 26, 2014 in Notable real cases | Permalink

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Comments

I just read through the oral arguments. While it's hard to say this from just the transcripts, it seemed like Elonis' lawyer had a rough time in his first argument, although he seemed better in the second half. Both lawyers, as well as the justices, seemed to struggle at times with some of the concepts/issues that each party was arguing. I think part of that is due to having both pre-MPC terminology and the MPC terminology at play, which seemed to be part of the confusion.

After reading through both arguments, I'm definitely not having an easy time predicting how it will come out. It's comforting to see that SCOTUSblog also found the Court hard to read.

This case is absolutely interesting, with all the mens rea ideas at play, as well as the context of internet and rap. I'm looking forward to seeing how it all plays out.

Posted by: Jason Manion | Dec 1, 2014 7:59:12 PM

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