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Supreme Court May Take A Shot At Defining The Point At Which Protected Speech Becomes An Unprotectable 'Threat'

from the yes,-there's-a-lousy,-dark-humored-joke-in-that-headline dept

Fri, Apr 11th 2014 7:39pm — Tim Cushing

The Supreme Court may take up the question of whether or not communicated threats are still threats even if the person making the statement doesn't necessarily have the ability or the intent to carry them out. In short, at what point does it turn from protectable speech into something the First Amendment won't cover?

The latest case involving the legal parameters of online speech before the justices concerns a Pennsylvania man sentenced to 50 months in prison after being convicted on four counts of the interstate communication of threats. Defendant Anthony Elonis' 2010 Facebook rant concerned attacks on an elementary school, his estranged wife, and even law enforcement.

"That's it, I've had about enough/ I'm checking out and making a name for myself/ Enough elementary schools in a ten mile radius/ to initiate the most heinous school shooting ever imagined/ and hell hath no fury like a crazy man in a Kindergarten class/ the only question is … which one?" read one of Elonis' posts.

This is a subject we've discussed several times previously. People (mainly teens) have made statements and comments via social media that have veered close to being threats, but once investigated, turn out to be nothing more than stupid kids being stupid. Prosecutors and law enforcement have made some questionable decisions in their attempts to portray youthful indiscretions as the words of would-be killers, such as withholding the surrounding context or willfully misreading the words themselves.

Elonis' case is a bit more complicated. For one, Elonis is 30 years old. While growing older doesn't necessarily make you immune from stupidity, the expectations are a bit higher in terms of online discourse. It's a little harder to claim you're running on the same high-octane concoction of hormones and blood displacement that teenage boys are. Not that all youthful indiscretions are excusable, but given that age group's tendency towards disproportionate drama in all things, it does make it more understandable.

In addition, Elonis' statements were directed at a variety of targets, any of which would seem to be a viable recipient for his anger. Not only did Elonis mention shooting up a school (specifically a kindergarten), but he also apparently had dire "plans" for his wife and local law enforcement. Again, the post-Sandy Hook law enforcement/judicial mentality further clouds the issue, raising the question that if Elonis had left out the part about the school shooting, would he still be facing 30 months in prison? (Of course, threatening law enforcement tends to create just as much of a legal mess, usually one far worse than simply threatening your estranged spouse does…)

But the odds are fairly long that the Supreme Court will find the ability to carry out the threat matters as much as the perception of everyone else but the person making the statement.

Only one federal appeals court has sided with Elonis' contention that the authorities must prove that the person who made the threat actually meant to carry it out. Eight other circuit courts of appeal, however, have ruled that the standard is whether a "reasonable person" would conclude the threat was real.

This long shot is also reliant on another long shot: that the administration will support this appeal. A similar case involving an Iraq War vet was greeted by the White House with a written petition asking the Supreme Court to reject the case. These two obstacles make it unlikely that the judicial system will start treating so-called "threats" any differently than they have in the past. And it's a very long past. David Kravets at Ars Technica points out that the statute being applied to these cases originated in 1932.

There are legitimate threats and these are rightly not treated as free speech. But there are others that are treated as legitimate threats even when there's no evidence the person uttering them has the ability, much less the intention to back up their unfortunate statements. Applying a 1932 statute to the wide open discourse platform that is the internet is doing little more than putting loudmouths and idiots in jail. Those who mean actual harm to others generally don't enlighten their future targets via Twitter, Facebook and forum posts.

By all means, potential threats should be investigated, but the courts need to come to the realization that these statements cannot be entirely robbed of their context (including intent and ability) and presented "as is" to the hypothetical "reasonable person." Reasonable people are completely capable of understanding that not every hurtful word can actually hurt someone, nor do they believe every "threat" is the sign of impending danger. Not only should the statute be reconsidered, but so should the court's "reasonable person" ideal.

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Filed Under: first amendment, free speech, speech, supreme court, threat

41 Comments

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mr. sim (profile), 11 Apr 2014 @ 8:25pm

what the supreme court fails to understand here is that there aren't many reasonable people in the law enforcement field anymore. i mean they expect officers who think that killing unarmed men on tape is no big deal, or prosecutors who hide evidence and see no problem with people spending decades in prison they should not have had to as "reasonable people." this situation is worsened by politicians who think their town needs an armored assault victim for an epidemic of "cop killings" that amounts to two offers in 30 years. reasonable people left the law side of the government years ago.
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- richard mcenroe, 14 Apr 2014 @ 12:40pm
  
  Re: SCOTUS and "reasonable threats"
  Nor are there many reasonable people on the internet or the streets anymore. We live in a time when celebrities feel comfortable calling for the murder or rape of politicians they don't like on the air, for crying out loud. It is a generation of acting-out and tantrum-as-politics. We just had a synagogue shooting where the suspect was a regular on both Max Blumenthal's and Ron Paul's diametrically opposed sites.
  
  Someone like Elonis needs a grown-up-weight timeout. Anyone who thinks his conduct is important or tolerable should reconsider their own beliefs and behaviors. Ideally while looking a picture of their own children.
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Anonymous Coward, 11 Apr 2014 @ 9:55pm

I would imagine Hal Turner's case, if and when it comes to the court will also define what is threatening and what is not.
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Anonymous Coward, 11 Apr 2014 @ 11:11pm

Oh great,so when it's about MONEY - go ahead, donate as as much as you want - it's free speech!

But now they're going to censor ACTUAL speech?
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Innenausbau Hamburg, 12 Apr 2014 @ 1:21am

Reasonable people left the law side of the government years ago.
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Anonymous Coward, 12 Apr 2014 @ 3:45am

The creep of tyranny, where freedom is lost and lives are dictated
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Votre (profile), 12 Apr 2014 @ 4:49am

No good will come of it.

- It will initiate spiraling attempts to establish increasingly complex legislation to "clarifiy" and "define" free speech in increasingly turgid legal verbiage.

- It will likely play into the creation of misguided (but increasingly popular) "zero tolerance" state laws.

- It will do nothing to cut down on wrongful arrests or prosecutions.

Cops don't usually read or understand the law. They react to 'keyword triggers.' Which is a fancy way of saying: (a) slap a label on someone (b) make the arrest (c) let the judge sort it out.
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Anonymous Coward, 12 Apr 2014 @ 5:16am

From the article:

"The Supreme Court may take up the question of whether or not communicated threats are still threats even if the person making the statement doesn't necessarily have the ability or the intent to carry them out."

From the Elonis petition:

"Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant�s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a �reasonable person� would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort."

Not surprisingly absent from the Elonis case is any claim that the First Amendment requires proof that a speaker have the ability to CARRY OUT his threat. Either Tim Cushing fails at reading comprehension or is a government hack.
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- Randall, 14 Apr 2014 @ 12:22pm
  
  Re: Anonymous, step away from the keyboard
  Dude, take a hit of oxygen. I don't know what your dog is in this fight, but you're delusional. All they're proposing here is formalizing an already existent process. They take into account feasibility now - else I'd be in jail serving multiple sentences for threatening to kick someone's ass on football forums.
  
  (not that literally getting your ass kicked for advocating Flutie start over Brees is in any way wrong. But it *is* technically illegal.)
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Anonymous Coward, 12 Apr 2014 @ 5:44am

Lousy reporting by Mr Cushing. I suggest hiring someone with basic knowledge of existing laws.
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- Anonymous Coward, 12 Apr 2014 @ 6:13am
  
  Re:
  Perhaps you intended to visit a law blog.
  [ link to this | view in chronology ]
- This comment has been flagged by the community. Click here to show it
  
  Anonymous Coward, 12 Apr 2014 @ 8:42am
  
  Re:
  For what Masnick pays, this is the best you'll see.
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- Anonymous Coward, 13 Apr 2014 @ 11:18pm
  
  Re:
  Like who, you? No way.
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Mike (profile), 12 Apr 2014 @ 5:59am

Facebook is the worst thing to EVER happen to the internet.
We are slowly going to far with law..or maybe not so slowly.
btw, I hear panama is a nice place, anyone ever lived there?
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Anonymous Coward, 12 Apr 2014 @ 6:16am

One would think anger management would be a more appropriate punishment than prison.
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Lurker Keith, 12 Apr 2014 @ 6:18am

Of course they all have resources to carry out threats!
Of course someone who makes a threat has the means to carry it out! How could they not, what with the FBI so willing to supply pretend terrorists (& mass shootings like speculated on in this instance are considered terrorism...) said resources, fake or otherwise, just so they can claim they stopped something later!
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ChrisB (profile), 12 Apr 2014 @ 6:52am

A threat is a threat
I think a threat is a threat. It is a crime unto itself. Do you think the threatened person can tell if the threatener has the means to carry out the threat? A threat is meant to create fear. Not punishing threats would just lead to more people making them.

The leading cause of death for pregnant women is homicide. This is ridiculous. There is an epidemic of men stalking, harassing, and killing women, mainly ex-girlfriends and wives. Personally, I don't care if some of these men cool their heels in prison for a long time. It is better than the alternative.
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- Quiet Lurcker, 12 Apr 2014 @ 7:49am
  
  Re: A threat is a threat
  "I think a threat is a threat. It is a crime unto itself."
  
  Is 'performing' so-called rap music (which is chock full of nothing but violence) a direct threat to anyone? Rap 'artists', from what I understand, generally do have the means to carry out the treat contained in their 'lyrics' (handguns, mostly, which I'm given to understand they carry and the law be damned). Should they go to jail simply for 'performing'?
  
  And to save you the effort of making the assumption, yes I do disapprove of rap its associated 'culture', perhaps violently so.
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  - Anonymous Coward, 12 Apr 2014 @ 8:06am
    
    Re: Re: A threat is a threat
    Thank you for recognizing what this case is about.
    
    Respectable reporting can be found at:
    
    http://www.huffingtonpost.com/clay-calvert/supreme-court-should-deci_b_5086608.html
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  - nasch (profile), 14 Apr 2014 @ 6:36am
    
    Re: Re: A threat is a threat
    Is 'performing' so-called rap music (which is chock full of nothing but violence) a direct threat to anyone?
    
    It could be, if a specific person is named.
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- LoneStar78641, 14 Apr 2014 @ 2:26pm
  
  Re: A threat is a threat
  'The leading cause of death in preganant women is homicide'?
  
  I don't think so, ChrisB. Less than a minute online brought me to CDC reports that show that the leading cause of death is medical complications from the pregnancy itself, followed by suicide. So, at best, you're ignorant (and with a woeful lack of critical thinking skills). At worst (and likely), you're a man-hating misandrist (but I repeat myself). ChrisB, you're part of the problem.....
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Anonymous Coward, 12 Apr 2014 @ 7:15am

When
I read the text of the first amendment,
I don't see any exceptions mentioned. Do you?
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- Anonymous Coward, 13 Apr 2014 @ 6:26pm
  
  Re:
  Excellent comment that also shows the insanity of 2nd Amendment Nuts.
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Daniel Joseph Calvanese, 12 Apr 2014 @ 8:45am

Shock!
Wait, are you trying to tell me that all those times when I was told that my mom would be raped over an online game were false?!
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Anonymous Coward, 12 Apr 2014 @ 8:50am

chip away until the thing you are chipping at is gone , smart move (sarcasm) just send the guy over for psychological testing and counseling and call it done. perception of a threat is an individuals hands , most people feel threatened by most LEOs when being pulled over a questioned .
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tomczerniawski, 12 Apr 2014 @ 8:53am

So hey, I feel...
... that NSA data centers should be burned down. Note, please, that I'm not threatening to do it myself. I just think it'd be really neat if every building owned by the NSA spontaneously caught fire. Who's with me?
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- Anonymous Coward, 13 Apr 2014 @ 4:11am
  
  Re: So hey, I feel...
  Yes, i would also like to see government and commercial spying facilities dismantled
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zip, 12 Apr 2014 @ 9:07am

voodoo terrorism
The whole concept of "creditable" is in the eye of the beholder. People have gone to prison for casting Voodoo spells -- yes, Voodoo -- and presumably, just threatening to harm someone with Voodoo would also be a serious crime.

http://www.washingtonpost.com/local/dc-man-who-used-voodoo-to-try-to-kill-his-wife-sentenced-t o-4-years-in-prison/2013/03/26/31770ad0-962f-11e2-8b4e-0b56f26f28de_story.html
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- Clayton E. Cramer, 14 Apr 2014 @ 2:28pm
  
  Re: voodoo terrorism
  You might to read that article more carefully. It was after the voodoo spell failed that the husband hired someone to shoot her. That is what put him in prison.
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CK20XX (profile), 12 Apr 2014 @ 11:16am

This Country Is In No Shape To Judge Threats Anymore
If it were, then I'd say if a kid makes a stupid, baseless threat on Facebook and gets caught, then he should be sentenced to some community service. But until the USA gets over its terrorism obsession, even baseless threats are going to be interpreted in the worst way possible and a lot of relatively (emphasis on relatively) innocent people are going to get unjustly imprisoned.
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Anonymous Coward, 12 Apr 2014 @ 12:00pm

Any wagers on whether lobbying will be added as an exception when "threat" is defined?
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- Anonymous Coward, 13 Apr 2014 @ 4:18am
  
  Re:
  No, lobbying is lawful, bribery of lawmakers, where money dictates law and not right and wrong, thats a different matter.........oh wait, never mind, yes, LOBBYING IS ILLEGAL.........unless the total sum of money is equal to the total sum of contributers, 1 lump sum from one contributer or a fewinproportionateto the total sum of a population = FUCKING ILLEGAL........they want to continuingly insist on fcked up manufactured laws FINE, we'll just shout louder and point at the actual illegality happening in pushing through these manufactured laws
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Anonymous Coward, 13 Apr 2014 @ 6:12am

That looks bad but more context is needed
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madasahatter (profile), 13 Apr 2014 @ 12:02pm

Fighting Words
Part of the problem is most normal people will say something out of anger such as "X deserves to die because X is a Y" or "I should terminate with extreme prejudice X because X did Y" without any intention of carrying out the implied threat. This results with hypersensitivity in people being charged with some form of terrorism when they were just venting anger. Add that any comment made on the Internet can potentially be seen by the entire world.
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My Name Here, 13 Apr 2014 @ 5:25pm

The real answer
Words cross the line into a threat when the person, institution, or group being threatened believes it enough to be concerned or to take action.

If the threatened party feels even in a small way that the threat could turn into real actions, then the threat is real to them, and in the end, they are the victims of the crime.
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- Anonymous Coward, 13 Apr 2014 @ 11:16pm
  
  Re:
  The real answer is that you're a fucktard who has no idea what's he talking about, Prenda fanboy.
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- Anonymous Coward, 14 Apr 2014 @ 5:43am
  
  Re: The real answer
  So you would agree to be sued after threatening to have an anonymous poster lynched by a thousand artists?
  
  horse with no name just hates it when due process is enforced.
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- John Fenderson (profile), 14 Apr 2014 @ 6:47am
  
  Re: The real answer
  "Words cross the line into a threat when the person, institution, or group being threatened believes it enough to be concerned or to take action."
  
  Not true. The usual standard is if "a reasonable person" would take it as a material threat. Not everyone is reasonable.
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  - Pragmatic, 15 Apr 2014 @ 2:35am
    
    Re: Re: The real answer
    The ability and will to carry it out also needs to be considered, otherwise I could take any negative comment out of context, "interpret" it as a threat, and report the commenter for it just because I "believed" it was a threat.
    
    I'm not a fan of "Stand your ground" laws for this reason.
    
    "Words cross the line into a threat when the person, institution, or group making the threat makes plans and acquires the means to take action."
    
    FIFY
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Just Another Anonymous Troll, 14 Apr 2014 @ 6:08am

Well, he seems nutbag enough to do it and can probably buy a gun... Not sure if I condone spending almost three years in prison for a nutbag rant, but there is definitely evidence to convict. Moral of the story: Don;t post nutbag rants on Facebook, people can see them (including the NSA).
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richard40, 16 Apr 2014 @ 7:47am

I might convict this guy myself, even though I am a big free speech supporter. His threatening statements were specific enough that a reasonable person might well conclude that he could carry them out. If they had done nothing, and this guy ended up shooting up a school, or killed his wife, we would have heard a constant "why didn't they do something to stop him". The author makes a good point though that just quoting the purported threat is not enough, context, and the actual ability and possible intent to carry out the threat, is also important and should be allowable as evidence for the defense. And I agree that teenagers should be given more latitude.
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