Monday, December 1, 2014

Say Anything. Almost.

Criminalizing speech is constitutionally dangerous territory. The First Amendment protects free speech, but that doesn't let you say just anything.  Remember the law school problems -- screaming "fire" in a crowded theater, burning draft cards, or profanity-emblazoned t-shirts. And our language evolves. What was once outrageously offensive is common, cool tech slang. Just ask Phil about netspeak >

Regulating speech in social media is a whole new world for SCOTUS. Today, the Court ventured into that territory, hearing argument in Elonis v. U.S. Facebook was the medium for post-divorce venting by Mr. Elonis. His word choice, however, was ill-considered, to say the least. To his ex-wife and an FBI agent, his on-line rants were truly threatening. He was charged and convicted of transmitting "in interstate or foreign commerce any communication containing . . .  any threat to injure the person of another." 18 USC section 875.

The issue here is one of perspective: would a reasonable person truly believe the words were a threat, or must the speaker personally intend to threaten? Subjective intent may strip antagonistic words, or communicative actions, of First Amendment protection, as in Virginia v. Black, the 2003 cross-burning case. In Elonis, the government argues that the standard should now be whether a reasonable person would be threatened.

SCOTUS, under the Roberts regime, has protected the speech of the Phelps picketing the funerals of soldiers killed in Iraq and videos of dogfighting. But this case is particularly complicated because of the forum -- all kinds of words are uttered in social media, and often in hard-to-decipher contexts. And as Justice Kennedy noted, "true threat" is a "most unhelpful phrase." Virginia v. Black's cross-burning is light years from Facebook rants. Both present contemporary social issues. Black had obvious racial overtones; Elonis implicates domestic violence concerns.

Pending the decision in Elonis, the Tenth Circuit hews to Black's subjective-intent standard. A true threat must be made "with the intent of placing the victim in fear of bodily harm or death." United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir. 2005)(quoting Black, 538 U.S. at 360). Be advised, though, that this issue is more complicated than just a question of proof, and that federal law criminalizes and distinguishes different types of threats, even within this one statute.

Note: Justice Ginsburg, aka Notorious RBG, was on the bench today, just a few days after heart surgery. 

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