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SCOTUS Hears Arguments in 'Facebook Threats' Case, U.S. v. Elonis

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By Mark Wilson, Esq. on December 03, 2014 11:34 AM

On Monday, the U.S. Supreme Court heard oral arguments in United States v. Elonis, ballyhooed as the "Facebook threats" case or the "rap lyrics" case. Commentators have proclaimed that this case will determine the fate of free speech on the Internet.

But this is really a simple case of criminal threats that just happened to be made on the Internet.

Purpose or Knowledge?

The issue is analog, not digital. A "true threat" is a category of unprotected speech, but to whom is the speech threatening? The Third Circuit instructed the jury that it only had to find Anthony Elonis' statements threatening to a reasonable person. Elonis, however, is arguing that the statements should only be evaluated via subjective intent; that is, the statements are threatening only if Elonis intended them to be so.

Grilling John Elwood, attorney for Elonis, the justices didn't seem comfortable with adhering strictly to subjectivity. How can you know what Elonis was thinking, they wondered. And how could Elonis know that his statements would be perceived as threatening? The distinction comes down to what intent should mean. Could it be recklessness? Elwood said that the way the government articulated the rule, "intent" could be negligent if Elonis knew or should have known that his statements would be perceived as threatening. Purpose, he said, not knowledge of placing someone in fear, should be the test.

Context Matters

The government, naturally, skewed to the opposite pole, requesting a pure reasonable person standard, which the justices criticized as divorced from context. "I mean, is the --­­ the Internet exchange, is it the --­­ what the reasonable teenager thinks how it would be understood by the recipient of the text?" asked Chief Justice Roberts.

What about a person who learns about a threat and communicates that threat to the target? Under the government's standard, Justice Kennedy said, the person trying to warn the target could actually be just as liable for making a criminal threat. (Michael Dreeben, for the government, gets around that by saying, essentially, that the subjective intent is "implicit" in the jury instruction, but Kennedy wasn't buying that.)

Rap Lyrics

The elephant in the room, though, was artistic expression. Dreeben said it was easy to conclude that rap lyrics, as used by a rap artist, aren't threats if the "purpose" type of intent is used: In that case, "in the context of those statements, it's pretty clear that the purpose of the communication is entertainment."

The rap lyrics defense, though, is one Elonis raised only recently, and one that engendered skepticism. "Well, this sounds like a roadmap for threatening a spouse and getting away with it. So you ­­-- you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an aspiring rap artist. And so then you are free from prosecution," remarked Justice Alito.

Elwood concluded his rebuttal by pointing out that many populous states have subjective intent requirements, like California. That's true -- but they have them in conjunction with objective intent requirements. That's a good middle ground, and probably where this case is going to land.

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