Appeals Court Reinstates 'True Threat' Conviction Supreme Court Overturned, Still No Answers On First Amendment
from the welcome-back,-Anthony dept
A case about where free speech ends and "true threats" begin has made it all the way up to the Supreme Court and back and the question still remains unanswered.
Anthony Elonis has been engaged in a long legal battle in hopes of proving that a bunch of truly nasty things he posted on Facebook weren't threats, but rather "rap lyrics" posted solely for entertainment purposes.
Pennsylvania man Anthony Elonis has historically enjoyed saying outrageous things on Facebook, such as how he would like to murder his estranged wife; shoot up an elementary school; sneak into an amusement park he was fired from to wreak havoc; slit the throats of a female co-worker and a female FBI agent; and use explosives on the state police, the sheriff's department, and any SWAT team that might come to his house.
Elonis claimed these comments have been taken out of context -- the context being that his persona online is larger-than-life and those reading these posts were well aware of his tendency to post inflammatory, outrageous rants. For those posts, Elonis was also taken out of context -- at least as far as leading a normal day-to-day life is concerned. He was convicted and received a 44-month sentence.
The Supreme Court had a chance to examine the First Amendment issue at the center of it and hand down a ruling that might have cleared up some of the muddiness surrounding the dividing line between free speech and threats. Instead, it bypassed the First Amendment question and found procedural grounds for overturning Elonis' conviction.
In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”
The case was remanded to the Third Circuit Court of Appeals with the conviction overturned and the First Amendment question unanswered. That doesn't mean Elonis is a free man. The Appeals Court has reexamined the case in light of the Supreme Court's extremely narrow finding and ruled [PDF] that it had been right the whole time.
Anthony Elonis was convicted of violating 18 U.S.C. § 875(c), which prohibits transmitting in interstate commerce a communication containing a threat to injure the person of another. We affirmed his conviction on appeal, but the Supreme Court reversed our judgment. It held that the jury instruction regarding Elonis’s mental state was insufficient and therefore erroneous. On remand, we will once again affirm Elonis’s conviction because we hold the error was harmless.
The sole issue the Supreme Court directly addressed and found to be significant enough to overturn the conviction is nothing but a "harmless error" in the eyes of the Third Circuit. No definitive answers on free speech protections, and Anthony Elonis gets nothing more than a very long tour of the US court system culminating in an appeals court shrug.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: anthony elonis, first amendment, free speech, social media, supreme court
Reader Comments
Subscribe: RSS
View by: Time | Thread
That sounds like one of those laws that used to serve a very good specific purpose in a previous era, but is meaningless in an age where probably every online communication crosses state lines at some point.
[ link to this | view in chronology ]
I see a pattern here
[ link to this | view in chronology ]
Re: I see a pattern here
Congress makes laws, not the Supremes. Three branches and all that.
[ link to this | view in chronology ]
Re: Re: I see a pattern here
SCOTUS should most certainly be reviewing high profile legal issues instead of piss-ant items.
[ link to this | view in chronology ]
Re: Re: I see a pattern here
[ link to this | view in chronology ]
Re: I see a pattern here
Welcome to the reality of the Rule of Law, basically.
[ link to this | view in chronology ]
"We're not the ones facing years in jail, therefore it's harmless."
It held that the jury instruction regarding Elonis’s mental state was insufficient and therefore erroneous. On remand, we will once again affirm Elonis’s conviction because we hold the error was harmless.
If the 'error' was the difference between conviction and a finding of not-guilty, as could very well be the case, it's anything but 'harmless'. He was found guilty when the bar was set lower, would he still have been found guilty if it was raised? Given that's the kind of question that could mean the difference between lengthy jail time and free to go the attempt to brush it aside as no big deal is pretty disgusting on the part of the appeal court.
[ link to this | view in chronology ]
Hollywood Executives
Oh yeah, I forgot, the laws are not applied equally to all people. Got it.
Too bad Anthony Elonis did not have a record contract, that's all he needed to avoid prosecution.
[ link to this | view in chronology ]
Re: Hollywood Executives
The presidential races have proven that people no longer seek respectability for the position, but instead political ideology.
[ link to this | view in chronology ]
It's good to see that the appeals court has their heads on straight, that they realize that just because there was some minor technicality that was problematic with the earlier ruling, it doesn't actually do anything to show that Mr. Elonis wasn't exactly what he appeared to be: a violent thug trying to intimidate people, then making up a completely transparent excuse when called on it.
A violent thug who, by the way, doesn't even listen to rap according to his wife.
[ link to this | view in chronology ]
Re:
The same wife he was getting divorced from at the time? Surely an unimpeachable source...
"a violent thug trying to intimidate people"
It should also be noted that a great many hip-hop artists can (and have) get the same accusations levied against them based on their recordings. Unless there's evidence that he actually intended to follow through with his words, it's extremely troublesome that they should be treated as a jailable offence. Especially if conscious wrongdoing is now considered as being irrelevant to consider.
[ link to this | view in chronology ]
Re: Re:
Until we can read minds, there's usually no way to determine a person's intent, so it really shouldn't be part of the law. Otherwise you get abominations such as Comey's letting Hillary off the hook. "Well, she sure did commit a crime. Lots of times. Lots of crimes. Involving mimes. But we're not sure she MEANT TO, so we're not going to do anything"
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
I see why you would say this, but this is a very dangerous request. "Strict liability" laws (which make no account of the defendant's intent) combined with the presumption that everyone knows every law (because who doesn't spend years memorizing the US Criminal Code?) can very easily snare people who did not know the law and would not have committed the crime had they known the action was illegal. Yes, the "big" laws are well enough known (no killing outside the confines of a "justifiable homicide", etc.), but there are so many obscure laws (e.g. rules about what can be imported from abroad, and under what conditions it must have been handled while abroad, and what obligations the importer bears for verifying that those conditions were met) that imposing strict liability everywhere is dangerous.
I could see an argument for strict liability in those laws where it can be said with a straight face that the defendant knew, or reasonably should have known, that the conduct was not just illegal, but so far separated from legal conduct that no one could argue that it was almost consistent with the law. In any other case, I think we need to infer intent from the defendant's related actions and, when the inferred intent is innocuous, err on the side of non-prosecution. Even with an inferred intent standard, Mrs. Clinton's conduct likely could have been pursued on the basis that there was not a solitary technical violation (e.g. accidentally carrying a classified document out of a secure facility, but putting it back on discovering the mistake), but an ongoing pattern of handling the information in ways that, per the training she should have received, was clearly disallowed.
[ link to this | view in chronology ]
Re:
The Supreme Court simply sidestepped the whole issue. Instead of answering the question that was put to them, they focused on the minutiae of the case - something else entirely.
[ link to this | view in chronology ]
Re:
He obviously has an issue with talking bollocks and making false threats (if you do not believe his rap story) but the best bet with someone like that is to ignore them rather than making him a criminal and sticking him in prison for 3.6 years.
[ link to this | view in chronology ]
Re:
proving for the hundredth time you are an unAmerican authoritarian who does NOT give a shit about the rule of law, only what widdle wheeler wants...
ultimately, you are just a big scaredy cat crybaby...
[ link to this | view in chronology ]
Re: Re:
Of course, it's also possible that I know, from direct, personal experience, that the kind of man who would make threats like that--particularly against his own family--is the kind of man who isn't likely to stop at threats.
It's possible that I live in Eastern Pennsylvania and don't want a dangerous thug like this man walking free anywhere near me.
It's possible that you're an idealistic kid (would I be correct in guessing you're under 30?) who's been fed a steady stream of nonsense like the sort of stuff Tim Cushing regularly writes all your life, who has lived a relatively comfortable life with no exposure to the sorts of conditions that are the reason that these laws exist, and therefore you are literally not capable of seeing the other side of the issue.
You never can tell, on the Internet.
[ link to this | view in chronology ]
Re: Re: Re:
2. you constantly beat the drum of fear, Fear, FEAR ! ! ! that ANY POTENTIAL threat is treated as both real and inevitable, when most such fears are highly exaggerated if not simply made up... (you are SERIOUSLY and TRULY frightened you might run across this guy and he will take a cracker out ? seriously ? you need some long overdue fear calibration...)
3. it is to larf: i been excoriating authoritarians online since before most all of techdirtia was born... i am 60sumpin... my heart still burns for, still yearns for justice...
4. again, my main point is, you dont give a shit about the rule of law, you want what you wsnt, regardless of the law...
[ link to this | view in chronology ]
Re: Re: Re: Re:
"Abject authoritarian..." What does that even mean? That I believe in the institutions of society that keep things running in a civilized, orderly fashion? Guilty as charged, I guess.
What you call "fear" I call "wisdom," preferring to learn from the lessons of the past instead of constantly saying "this time will be different" and constantly being wrong.
So you're a kid who never grew up. Gotcha.
[ link to this | view in chronology ]
Re: Re: Re:
You know different people to me, then. I know a couple of people who have a sense of humour and online personas that would make such threats, but who would never consider doing any such thing in the real world. Sure, there's guys who are the opposite, but it's usually clear who is who. The guys who would carry out threats usually have a history of bar fights, domestic abuse, other violent activity that points to their threats being real rather than just venting anger through words on their Facebook profile. This is why we should be prosecuting people for their actions, not what they say.
"You never can tell, on the Internet."
Exactly why we're against jailing people purely for things they said on the Internet. Yet, you support this.
[ link to this | view in chronology ]
Re:
Did I click a wrong link and accidentally end up on Breitbart?
[ link to this | view in chronology ]
'prohibits transmitting in interstate commerce a communication containing a threat'
[ link to this | view in chronology ]
Re: 'prohibits transmitting in interstate commerce a communication containing a threat'
This looks more like another case of Congress noting that they had no Constitutional mandate for this type of thing, so they phrased it in a way that the Commerce Clause could be misread as permitting it. The Commerce Clause has proved quite popular as a way of saying that anything which does, or in some cases plausibly might, affect interstate commerce is necessarily within Congress's power to regulate. In this case, it is not clear that there was any commerce initiated or contemplated by the parties, but that was still used to justify the idea that the event must fall under Congressional authority.
The alternative would be for states to (a) criminalize threats made by their citizens, regardless of who the speaker threatens or (b)(1) criminalize intrastate threats and (b)(2) establish reciprocity arrangements, such that the speaker's state will honor threat-related laws of the recipient's state (likely subject to limits such as "if recipient's state laws are no stricter than speaker's state laws, speaker's state will respect them"). Federal separation makes it legally difficult for the listener's state to unilaterally criminalize non-resident speech, but if the speaker's state cooperates, then it is generally permitted.
[ link to this | view in chronology ]
Re: 'prohibits transmitting in interstate commerce a communication containing a threat'
[ link to this | view in chronology ]
Re: 'prohibits transmitting in interstate commerce a communication containing a threat'
[ link to this | view in chronology ]
Re: Re: 'prohibits transmitting in interstate commerce a communication containing a threat'
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
In all the above cases, activist decisions completely unsupported by the constitution and in a couple of instances not even supported by the facts of the case or simple common sense.
[ link to this | view in chronology ]
Harmless Error
Translation:
[ link to this | view in chronology ]
[ link to this | view in chronology ]