Law in the Internet Society
-- StephenHorton - 29 Dec 2014

The Supreme Court heard oral arguments for Elonis v. United States on December 1, 2014, which has opened up a debate about the issue of free speech on the Internet. In that case, defendant Anthony Elonis posted violent rap lyrics about murdering his wife on Facebook. He was prosecuted under 18 U.S.C. 875(c), which states that “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” In this essay, I review Supreme Court First Amendment jurisprudence and evaluate the merits of Elonis’s argument.

Supreme Court First Amendment Jurisprudence

It is clear that the First Amendment does not provide unlimited protection for all things spoken, written, or otherwise expressed. For instance, in Schenck v. United States, 249 U.S. 47 (1919), Justice Holmes, writing for the majority, famously wrote, “[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Schenck remains a driving principle behind free speech jurisprudence, but was limited in Brandenburg v. Ohio, 395 U.S. 444 (1969). That case held that it is an infringement of First Amendment speech rights to punish speech unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. at 447.

However, the Supreme Court has said that, along with incitement speech, government may impinge on speech that constitutes a “true threat.” In Virginia v. Black, 538 U.S. 343 (2003), the majority held that “[t]rue threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. at 359 (internal quotation marks omitted).

Elonis’s Case

Elonis’s case turns on the application of the true threat doctrine. As is apparent, the definition from Virginia v. Black leaves something to be desired in terms of clarity. Elonis is arguing that the federal statute he was prosecuted under requires the government to prove his subjective intent to threaten. The government, on the other hand, maintains that proof of subjective intent is next to impossible to prove and would swallow the true threat exception altogether. Rather, they argue that they only must prove that a reasonable person would regard Elonis’s speech as threatening.

The former position is the correct one. Our legal system has required substantive intent for criminal liability since the beginning of our common law tradition, rather than simple negligence. See e.g., Holmes, The Common Law (1881). Moreover, when a criminal statute implicates a constitutional right, we must allow for a certain margin of error, if you will, in order to avoid a chilling effect on protected speech. People may choose to forgo making protected speech because they are concerned that they may find themselves on the other side of the contours of protection. Democracy thrives on differences of opinion and public discourse, so allowing for an adequate margin of error is preferable as an imprecise means to a desired end.

Substantively, Elonis’s statements were abhorrent and no one is defending the statements themselves. But, it is when we disagree with a speaker’s viewpoint that the civil liberties that this country was founded on are most crucial. Moreover, while it may seem like violent language like Elonis’s has no value whatsoever, as was suggested by Justice Scalia in oral arguments, infringing on Elonis’s right to express himself in this case will have far-reaching consequences on art speech (even if reasonable people disagree about whether statements like the ones in this case could ever be considered art) and political speech. As was pointed out by the Supreme Court itself, “[t]he language of the political arena,” in particular, “is often vituperative, abusive, and inexact,” and “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Watts v. United States, 394 U.S. 705, 708 (1969).

Furthermore, speech on the Internet should be particularly threatening in order t justify government censorship. The Internet was founded on the idea of dissemination of information and is inherently the primary vehicle of democracy in this country: “[t]hrough the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.” Reno v. ACLU, 521 U.S. 844, 870 (1997). The Supreme Court has had trouble adapting to 21st Century technology, but even without understanding the architecture of the Net, it is easy to see the value in allowing speech to remain largely unfettered in a context where anyone in the world can communicate with anyone else.

A subjective intent requirement, as argued for by Elonis, is necessary to protect First Amendment rights in general, and Internet speech in particular.

 

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r1 - 29 Dec 2014 - 19:55:53 - StephenHorton
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