Threat Charges Overturned After Some Threats Deemed Impossible To Carry Out And Others Left No One Feeling Threatened

from the defending-the-right-of-jackasses-to-be-jackasses dept

Is a threat still a threat if there's no possible way the threatened deed could possibly be carried out?

Venkat Balasubramani (writing for Eric Goldman's blog) has gotten his hands on another bizarre "true threat" case, this one originating from Georgia and carrying enough unpleasant baggage that it made its way to the state's Supreme Court despite the central threat being nothing of the sort.

Lister W. Harrell is nothing if not disagreeable. He was charged with violations related to his position as a landlord. He blew off his court date and tried to "persuade" two court clerks to withdraw the arrest warrant for his failure to appear. This led to charges of animal cruelty and attempting to intimidate a court officer. That's where things get "fun," in the sense of the word that means "I'm so glad this happened to someone else."

On April 29, 2013, Harrell placed messages on the internet site Facebook that referred to Dodge County Superior Court Clerk Rhett Walker and Deputy Chief Clerk Tammy Graham. One post threatened that if the bench warrant was not lifted, Harrell would post an internet link to a video which he claimed showed Graham engaging in sexual activity with Harrell and two other men…

That's an ugly threat. One problem, though:

[N]o such video existed.

Not having the very thing he was attempting to blackmail a court clerk with didn't stop Harrell from continuing to make other claims he had no chance of backing up.

At trial, evidence was also presented that on April 15, 2013, Harrell left two voicemail messages intended for Shirley Webb, Harrell’s former girlfriend and the mother of two of Harrell’s children. In one message, Harrell stated that he was Sid Carter, Webb’s current boyfriend, was placing the call from the cell phone of Harrell’s son, and referred to a “dead pussy” in Webb’s mailbox. In the other message, Harrell implied that he intended to upload pornographic videos of Webb to an internet site.

Apparently, this "pornographic" video didn't exist either.

Harrell did much, much more than this. According to the allegations, a dead cat was found in Webb's mailbox and an animal trap in the adjoining area between Harrell and Webb's property. Harrell also "slowed down" when driving by the house and "pointed at the mailbox."

He also went after court clerk Rhett Walker, making another set of vaguely-threatening statements.

In another post, Harrell listed Walker’s personal cell phone number and urged readers to call Walker to tell him to leave Harrell alone while he was “on the run,” and thus not ruin Harrell’s “chicken foot eating victory.*” Harrell also initiated telephone communication with Walker in an attempt to persuade him to lift the bench warrant, saying that if he did not do so by a certain date, Harrell would “turn [Walker’s] world upside down,” and that “you know what will happen on Facebook.”

*No idea.

However, the court found that while Harrell was odious and childish, he was not guilty of issuing anything resembling a "true threat."

The court says that under Virginia v. Black, states may criminalize true threats, which it says are defined as statements where the speaker intends to create a fear of bodily harm. Under this standard, none of Harrell’s statements qualified. His posts to the Facebook group “DixieMafia,” while embarrassing and even caustic, did not intend to place anyone in fear of harm. Nor did the putative victims testify that they were placed in any fear of harm as a result of his statements.

So, we have threats that couldn't possibly be carried out (the nonexistent sex videos), threats that no one felt genuinely threatened by, and a dead cat of unknown origin, but tied to this case by Harrell's statements. And with that being the only thread tying Harrell to the dead cat, the court severs the connection by declaring it to be "improperly joined" to the rest of the charges. That being said, Harrell can still be tried for animal cruelty. The high court's decision notes that a jury could reasonably find that the dead cat in the mailbox was related to the animal trap found on the premises, but his "dead pussy" comment left on Webb's voicemail won't be a part of the evidence.

The moral is that most criminals are terrible people, but not all terrible people are criminals. A lot of what falls under protected speech can be brutish and nasty without breaking the law. That may seem like a bad thing, but ensuring free speech remains free means having to support decisions in which it seems like a terrible person has gotten away with something. Some statements he made were vague. Others were merely laughable. And even at their ugliest, the targets of his statements remained unimpressed. It's pretty hard to make a "threat" charge stick when no one admits to feeling threatened.

Filed Under: first amendment, free speech, lister harrell, true threats

First Post-Elonis Threat Case Handled By Appeals Court And We're Still No Closer To Discussing The First Amendment

from the procedural-errors-FTW! dept

The Supreme Court's punt on true threats vs. free speech in the Elonis case has managed to pay off for one convicted criminal. While the nation's top court waits for the system to generate a better test case (and for defense lawyers to add up billable hours), the country will have to make do with the with the answers/non-answers provided by the decision.

Because the Supreme Court's ruling doesn't explicitly consider the First Amendment question, neither will anyone else, which makes a SCOTUS rematch slightly more unlikely. And the vague set of "rules" handed down in the decision that only sort of determined what the law is not have been applied to Clifford Houston and his angry, lawyer-directed phone calls.

Houston is a lifelong criminal who was tried for his involvement in a robbery/shootout that left a sheriff's deputy and his ride-a-long dead. Houston's lawyer, James Logan, managed to extricate Houston from felony murder charges in two consecutive trials, which resulted in a mistrial and an acquittal, respectively. That's some good lawyering.

Logan, however, was under the illusion that Houston would pay his legal bills. Houston obviously thought all legal work done on his behalf should be pro bono. Logan decided the only way he was going to get paid was to exercise his lien on Houston's property, something he acquired up front before taking Houston's case. Houston, back in jail for a firearms offense, soon expressed his displeasure at Logan's move against "his" property.

Houston called his girlfriend from jail and said the following:

HOUSTON: I'll kill that motherf[***]er [referring to Logan] when I get out. Hey, I ain't kidding! I ain't akidding! They can record it! They can do whatever the hell they want! That motherf[***]er opens up my house, I'll kill his ass! When I get out of this motherf[***]er, he's dead! . . .

HOUSTON: The only thing [Logan]'s gonna get from me is a f[***]ing bullet! That's the only thing that son of a b[****] gonna get from me! That's the only damn thing! They better get somebody to lock that son of a b[****] up! 'Cause I've got something for Mr. damn Logan! You let me get out of this motherf[***]er in any shape, form, or fashion, and he's got a damn problem! . . .

HOUSTON: You tell any of my family, you tell Cody, you tell Rachel, any of them, to kill that son of a b[****]! . . . Any of my, any of my people has got my permission to kill that son of a b[****]!

HONEYCUTT: They ain't gonna do that. I mean, they ain't gonna shoot nobody.

HOUSTON: Well, I ain't got no damn problem with it. I ain't got no damn problem with it.

Pat Honeycutt, the voice of reason in this exchange, calmly noted that Houston's extended family was probably not going to shoot a lawyer for foreclosing on property owed to him by Houston.

This conversation led to yet another indictment for Houston, this time for "transmitting a threat in interstate commerce." At his trial, the district judge issued the following instructions to the jury:

“A statement is a true threat if it was made under such circumstances that a reasonable person hearing the statement would understand it as a serious expression of intent to inflict injury.”

Houston was found guilty and sentenced to five years in prison. Houston appealed this decision, which worked out well for him as the Supreme Court was just reaching its Elonis decision. In the decision, the Supreme Court basically invalidated this jury instruction, stating that, as delivered, it failed to account for other mitigating factors.

"A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.”

Once again, there's nothing in this decision that even comes close to addressing how much distance actually lies between free speech and true threats. It's a longish procedural discussion centering on the difference between "negligence" and "awareness." Of the areas the appeals court explores, the discussion of Houston's mental state during the phone calls is the closest it comes to addressing speech protections (or the lack thereof).

Anyone listening to Houston’s recorded diatribe (and we have had the pleasure) could plausibly think one of two ways about it. One possibility is that he meant just what he said, creating liability no matter what the standard is. The other possibility is that the recording caught him in a fit of rage in a prison cell (where he was in no position to act on his thoughts and where he did not necessarily know anyone other than his girlfriend was listening).

As the court notes, both possibilities remain about equally probable, at least in terms of theoretical jury members.

Recognizing that Houston was speaking with his girlfriend, a jury could reason that he was venting his frustration to a trusted confidante rather than issuing a public death threat to another. That Houston’s girlfriend dismissed some of his comments out of hand (“[T]hey ain’t gonna shoot nobody”) would allow a jury to infer that he was ranting and raving rather than expressing an intent to cause harm. Houston was furious, to be sure, but he was not necessarily cogent— perhaps not even cogent enough to recognize the risk that his words would be perceived as a threat, which is what even the recklessness standard would require.

It goes on to point out that because both explanations are equally credible, Houston stood a reasonably good chance of being acquitted of the threat charges, but only up until the trial court tipped the balance with its erroneous instruction to the jury that "negligence" was the same as criminal intent. Weighing this with the Elonis decision, the appeals court finds in favor of Houston, reversing his conviction and kicking it back to the lower court.

One interesting aspect of this case that has nothing to do with threats, free speech or anything else the court might have needed to consider before reaching this conclusion is the "interstate" portion of the charges. Houston also protested this section of the charges. The government claimed that the "interstate" aspect of the charge was supported by the fact that -- despite it being a Tennessee-to-Tennessee phone call -- the call was routed through a Louisiana server.

The court bought this assertion, claiming a "reasonable juror" would find this logical. I'm not so sure. Because this aspect will rarely, if ever, be central to a disputed case, it's likely to remain unexamined. The problem is that prisons -- both public and private -- rely on a variety of (overpriced) private service providers for phone connections. Some may be located out of state for purely self-interested reasons, like dodging more restrictive local regulations. Some prisons may route calls less directly simply because it is more profitable for them -- and the contractors they retains -- to do so. So, in many cases, every call, no matter how local, could be considered "interstate," a term that tends to add additional months and years to violators' sentences.

Filed Under: elonis, first amendment, free speech, true threats

Governor Tells High School Students He'd Like To Shoot A Student's Dad; Arrest/Investigation Fail To Ensue

from the hahaha-but-srsly-i-want-to-kill-ur-dad-jk dept

We've recently discussed at length the subpoena and gag order issued by the Assistant US Attorney over some tasteless, but innocuous, comments made by Reason readers. Anyone who's spent any time in comment sections would have seen these comments as nothing more than the internet being the internet -- a place where hyperbole and stupidity very often outweighs thought and nuance. The comments are being treated as serious threats by the US government, seeing as they were posted below an article about a federal judge. Here are two of the more "violent" comments:

AgammamonI5.31.15 @ lO:47AMltt
Its judges like these that should be taken out back and shot.

AlanI5.31.15 @ 12:09PMltt
It's judges like these that will be taken out back and shot.
FTFY.

croakerI6.1.15 @ 11:06AMltt
Why waste ammunition? Wood chippers get the message across clearly. Especially if you
feed them in feet first.

Cloudbusterl6.l.15 @ 2:40PMIIt
Why do it out back? Shoot them out front, on the steps of the courthouse.

And yet, when a prominent political figure says roughly the same thing -- TWICE! (possibly) -- it's not followed up by the issuing of subpoenas or government-led investigations.

Maine Gov. Paul LePage's joke about shooting a political cartoonist is falling flat.

The son of Bangor Daily News cartoonist George Danby said LePage made the remark after he asked what the governor thought of his father's cartoons Wednesday during an event at Dirigo Boys State, a youth leadership program.

The governor told a crowd of high school students he would like to "shoot" this cartoonist. This was said directly to the cartoonist's son during a Q&A session with the governor. (Video -- albeit silent -- of the incident located here.) The Bangor Daily News noted the audience of teens laughed and took it as a joke. And it was, albeit a horrifically tasteless one considering cartoonists have very recently been shot for expressing their views. (That the governor's joke about shooting someone, delivered at a school event, wasn't immediately greeted with a swarm of police officers and strongly-worded condemnations by school officials is yet another bit of hypocrisy…)

Cartoonist George Danby -- the one the governor would like to shoot -- doesn't find the joke particularly funny. But as offended as he is, he's only asking for an apology, not an investigation. (And he still hasn't received one.)

But this isn't an isolated experience. It appears Governor LePage would like to kill many, many people.

A day after Gov. Paul LePage told a group of high school students that he would “like to shoot” a Bangor Daily News cartoonist, a top advocate for expanding passenger rail to Lewiston-Auburn said that LePage earlier this month said state lawmakers from Lewiston should be “rounded up and executed in the public square.”

That this alleged statement -- made on government property in a government building -- wasn't greeted with police officers, arrests, etc. is also hypocritical. Given the paranoiac thinking that has passed for "caution" since 2001, someone talking about shooting people while in a government building is usually considered to be something best handled with deployments of force and zealous prosecution. Then there's the fact that this joke Godwins itself by aligning Governor LePage with other political figures who had opponents rounded up and shot.

That LePage ever delivered this second shooting "joke" is still debatable. One person attending this meeting in the governor's office claims to have heard it. Other attendees disagree. But either way, we have at least one confirmed instance of a political figure claiming he'd like to shoot someone he doesn't like.

But there's no investigation underway and no one is calling for an indictment of LePage for issuing a "threat." Because it isn't one. It's simply hyperbolic speech uttered without intent or desire to actually follow through with such an act. It's what people do when expressing displeasure with someone or something. It happens all the time. Except when it happens in a comment section and the subject is a federal judge, it suddenly becomes a threat worthy of investigation and obfuscation by the US Attorney's Office.

When it's a politician "targeting" a little person, no one cares, even with the recent Charlie Hebdo shooting as a backdrop -- a justification for cartoonist George Danby to take this "threat" very personally indeed. But Danby doesn't think LePage truly wants him dead and recognizes it for what it is. The "little people" who aren't afforded the full power of their government are much more rational than those with it at their disposal.

Filed Under: comments, doj, george danby, governor, hyperbole, investigation, maine, paul lepage, true threats

Justice Department Issues Subpoenas To Reason To Identify Angry Anonymous Commenters

from the your-taxpayer-dollars-at-work dept

Back in 2011, as some of you may recall, we received a note from the US Marshals service, telling us that they were "investigating" a comment that had been placed on an article about a ruling by Judge Beryl Howell, who had received some criticism, given that she had previously been an RIAA lobbyist, and was now issuing rulings friendly to the legacy copyright industry. The comment in question was:

Is it time to start murdering the corrupt yet?

The guy from the US Marshals told us that he was investigating this comment and asked us to remove it (but did not ask for any information about the anonymous commenter). We found it somewhat disturbing that the US government would be asking us to delete comments, even if they, somewhat obliquely, questioned whether or not it might make sense to murder a judge (though the comment in question did not advocate such a move). We had our lawyer reach out the US Marshals, and after we told them that we would not be removing the comment, they told us that they understood our decision, and that was the last we ever heard about it.

It appears that things have gone much, much further with a similar situation with the website Reason, who we link to on a semi-regular basis. As Popehat is reporting, the DOJ has issued a grand jury subpoena to Reason seeking to identify the people behind a bunch of angry, hyperbolic comments on this post about Ross Ulbricht. As was the case with our post, some of the comments talk about killing judges, though in fairly typical internet fashion:

AgammamonI5.31.15 @ lO:47AMltt
Its judges like these that should be taken out back and shot.

AlanI5.31.15 @ 12:09PMltt
It's judges like these that will be taken out back and shot.
FTFY.

croakerI6.1.15 @ 11:06AMltt
Why waste ammunition? Wood chippers get the message across clearly. Especially if you
feed them in feet first.

Cloudbusterl6.l.15 @ 2:40PMIIt
Why do it out back? Shoot them out front, on the steps of the courthouse.

Rhywunl5.3l.15 @ 11:35AMIIt
I hope there is a special place in hell reserved for that horrible woman.

AlanI5.31.15 @ 12:11PMIIt
There is.

Product PlacementI5.31.15 @ 1:22PMIIt
I'd prefer a hellish place on Earth be reserved for her as well.

croakerl6.l.15 @ 11:09AMIIt
Fuck that. I don't want to oay for that cunt's food, housing, and medical. Send her through
the wood chipper.

The subpoena says that it's investigating possible violations of 18 USC 875, which outlaws interstate threats. Popehat, of course, does an excellent job explaining why it is fundamentally and legally ridiculous to argue that any of these comments are "true threats" under the law.

True threat analysis always examines context. Here, the context strongly weighs in favor of hyperbole. The comments are on the Internet,  a wretched hive of scum, villainy, and gaseous smack talk. The are on a political blog, about a judicial-political story; such stories are widely known to draw such bluster. They are specifically at Reason.com, a site with excellent content but cursed with a group of commenters who think such trash talk is amusing.

The "threats" do not specify who is going to use violence, or when. They do not offer a plan, other than juvenile mouth-breathing about "wood chippers" and revolutionary firing squads. They do not contain any indication that any of the mouthy commenters has the ability to carry out a threat. Nobody in the thread reacts to them as if they are serious. They are not directed to the judge by email or on a forum she is known to frequent.

Therefore, even the one that is closest to a threat — "It's judges like these that will be taken out back and shot" isn't a true threat. It lacks any of the factors that have led other courts to find that ill-wishes can be threats.

There's much more detail in the article.

Unfortunately, he also notes that the US Attorneys' office can probably get away with this kind of bogus fishing expedition. Despite the fact that it's extraordinarily unlikely that anyone engaged in these comments actually broke the law, the DOJ likely just needs to show that it has a "compelling interest" in investigating the mere possibility of a threat, and Reason can be forced to hand over the information. Following that, if the DOJ is feeling particularly nasty, it can make life horrible for those commenters in question. This seems like it should raise all sorts of First Amendment alarm bells about the chilling effects it can create for anonymous speech (especially political speech), but according to Popehat's analysis, the courts (so far) aren't buying it.

Equally as troubling is the fact that, when Ken "Popehat" White reached out to the US Attorney's Office with questions about this, Niketh Velamoor, the Assistant US Attorney who signed the subpoena, pretended that there might be a gag order on the subpoena, even though he likely should have known that there was no such gag order:

Mr. Velamoor was suspicious and defensive. At one point he told me that he "believed" that there was a gag order prohibiting this subpoena from being released by its recipients, and that whoever gave it to me must have violated that order, and that he would be "looking into it" and how I got it.

Such gag orders do exist. However, I note that two days earlier on June 2, 2015, Mr. Velamoor signed the cover letter on the subpoena, which contained the Department of Justice's standard language about secrecy:

The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party. While you are under no obligation to comply with our request, we are requesting you not to make any disclosure in order to preserve the confidentiality of the investigation and because disclosure of the existence of this investigation might interfere with and impede the investigation.

In other words, two days before he told me that he believed there was a gag order on the subpoena, Mr. Velamoor told Reason.com that it was not required to keep the subpoena secret.

Perhaps Mr. Velamoor misspoke. Perhaps Mr. Velamoor misremembered. Perhaps Mr. Velamoor didn't secure the gag order until after he issued the subpoena.

Or perhaps Mr. Velamoor, bless his heart, was lying in an attempt to intimidate me.

It's much easier to try to intimidate anonymous internet commenters if you can do so without having to publicly disclose your own disdain for the First Amendment in the process....

Either way, shouldn't we take a step back and ask a simple question: is this kind of thing really what the US Attorneys should be working on? Especially in the Southern District of NY where so many high profile cases are going on all the time? At best, this is just a typical "cover your ass" situation. If the judge in Ross Ulbricht's case actually did come to some harm, eventually it would get out that people were saying mean stuff on the internet, and the DOJ would like to be able to show that it did, in fact, investigate things, rather than ignore them. That means, most likely, nothing would ever come of this anyway in the long run. None of those commenters are likely to get charged with anything because they almost certainly didn't do anything illegal.

But still... it's frightening. The chilling effects are real. The Popehat article goes into these in much more detail, but in short, the US government can still cause tremendous problems for these commenters, even if everything they said is clearly protected speech. As White notes, you may think you're just blowing off steam in making an angry comment, but that won't stop you from being summoned to testify before a grand jury or to hire lawyers to defend yourself. Nor will it much matter should the FBI suddenly show up at your workplace, telling people there that they need to talk to you "just to clear some things up."

Should the DOJ be investigating threats? Sure. But, at some point, someone has to have a little perspective and to understand what's a threat and what's just some commenters saying idiotic things online.

Filed Under: anonymous speech, chilling effect, doj, free speech, grand jury, internet comments, ross ulbricht, subpoena, true threats, us attorneys office
Companies: reason

Supreme Court Completely Punts On First Amendment Question About 'Threatening' Song Lyrics On Facebook

from the we'll-see-you-in-court-again-next-year? dept

Last year, we wrote about a potentially important First Amendment case involving Anthony Elonis, who posted some fairly nasty things online, including some about his ex-wife that some certainly read to be threatening. Elonis insisted that it was just a persona, and what he posted online were merely rap lyrics with no actual threat behind them -- but he still ended up in jail for a few years because of it. And, thus, the Supreme Court heard a case that was supposed to be about the First Amendment and whether threats need to be "true threats" to lead to charges, and what exactly "true threats" mean, and through whose eyes should the statements be seen. But, as has happened all too often with this Supreme Court, it punted on the key issue and chose not to discuss the First Amendment issues at all after realizing it could overturn the case on other grounds.

The Supreme Court thinks it's doing a good thing when it fails to actually address the big question, saying that it's waiting for an appropriate time to do so, but all it really does is keep a bunch of legal uncertainties going, allowing lawyers to rack up huge amounts of billable hours, on questions that the Court could have just settled the first time around. It's no different in this case. Here, the court basically rejects the use of the "reasonable person" test that was used in the original jury instructions (i.e., would a "reasonable person" find Elonis's statements to be "true threats," rather than whether Elonis himself intended them as such). But, the Court notes, that's setting up a negligence standard that is rarely found in criminal law, and certainly not in the relevant statute for this case:

Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a “reasonable person” standard is a familiar feature of civil liability in tort law, but is inconsistent with “the conventional requirement for criminal conduct— awareness of some wrongdoing.”... Having liability turn on whether a “reasonable person” regards the communication as a threat—regardless of what the defendant thinks—“reduces culpability on the all-important element of the crime to negligence,” ... and we “have long been reluctant to infer that a negligence standard was intended in criminal statutes,” ... Under these principles, “what [Elonis] thinks” does matter.

And thus, the Supremes overturn the appeals court's ruling. It also notes that all the tap dancing the DOJ did in trying to insist that this is not a negligence standard fails:

The Government is at pains to characterize its position as something other than a negligence standard, emphasizing that its approach would require proof that a defendant“comprehended [the] contents and context” of the communication.... The Government gives two examples of individuals who, in its view, would lack this necessary mental state—a “foreigner, ignorant of the English language,” who would not know the meaning of the words at issue, or an individual mailing a sealed envelope without knowing its contents.... But the fact that the Government would require a defendant to actually know the words of and circumstances surrounding a communication does not amount to a rejection of negligence. Criminal negligence standards often incorporate “the circumstances known” to a defendant.... Courts then ask, however, whether a reasonable person equipped with that knowledge, not the actual defendant, would have recognized the harmfulness of his conduct.That is precisely the Government’s position here: Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a reasonable person would have recognized that the posts would be read as genuine threats. That is a negligence standard.

Okay. Fair enough. With that, the Court sides with Elonis:

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.”

But then the Court fails to take the next necessary step in handling what standard is appropriate.

There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.... In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient.... Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it... (this Court is “poorly situated” to address an argument the Court of Appeals did not consider, the parties did not brief, and counsel addressed in “only the most cursory fashion at oral argument”). Given our disposition, it is not necessary to consider any First Amendment issues.

And then the decision takes an additional page sanctimoniously explaining why it's not necessary to answer this question, even though it's likely to come up again. We've seen this argument before (including in some of the links above). This court hates to go out and actually address such questions, all too frequently saying simply "this rule is the wrong rule" and leaving a massive hurricane mess behind as everyone tries to guess at what the right rule might be. I'm sure, in some sort of "Supreme Court Justice On High" logic this makes sense, but it leads to a dangerous world of uncertainty that seems to only be helpful for the lawyers. Justice Alito made this point in his own addition to the ruling (partial concurrence/partial dissent):

Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.

The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction.... This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.

This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.

So, stay tuned, as we'll likely be back with the Supreme Court having to review this very issue once again within the next few years. And, in the meantime, there will be a huge mess in a variety of courts because no one knows what the proper rules are.

Filed Under: anthony elonis, first amendment, free speech, negligence, rap lyrics, reasonable person, supreme court, true threats

Supreme Court Quotes Eminem As It Explores The Difference Between Free Speech And 'True Threats'

from the free-speech-ain't-free dept

A few months back, we discussed how the Supreme Court was going to hear the case of Anthony Elonis, who had been convicted for making "threats" on Facebook directed at his ex-wife. Elonis, who claims to be an aspiring rap artist, says they were just lyrics, and he wasn't making any actual threat. On Monday, the Supreme Court had the oral arguments, and it gave Chief Justice John Roberts a chance to demonstrate his rapping skills [pdf] by quoting Eminem. The government's lawyer, Michael Dreeben tried to play it off as different, because people would be entertained by Eminem, but that just raised more questions:

CHIEF JUSTICE ROBERTS: What about the language at pages 54 to 55 of the Petitioner's brief? You know, "Dada make a nice bed for mommy at the bottom of the lake," "tie a rope around a rock," this is during the context of a domestic dispute between a husband and wife. "There goes mama splashing in the water, no more fighting with dad," you know, all that stuff.

Now, under your test, could that be prosecuted.

MR. DREEBEN: No. Because if you look at the context of these statements

CHIEF JUSTICE ROBERTS: Because Eminem said it instead of somebody else?

MR. DREEBEN: Because Eminem said it at a concert where people are going to be entertained. This is a critical part of the context. It wasn't as if he stated it to her in private or on a Facebook page after having received a protection from abuse order. It wasn't as if he appropriated a style of rap that wasn't anything that he had been doing previously in the marriage and all of a sudden tried to express violent statements that way.

In the context, I think any reasonable person would conclude at a minimum that there is ambiguity about these statements being a serious intention of an expression to do harm. And this is critical here. We're talking about an area in which if the jury finds that it's ambiguous, it has to acquit. It has to conclude that this is how these statements should be interpreted.

CHIEF JUSTICE ROBERTS: Well, yes, but you're dealing with some very inflammatory language. The question is whether or not the jury is going to be swept away with the language as opposed to making the subtle determinations you've been talking about.

Justice Samuel Alito seemed ready to toss the First Amendment right out the window because, apparently, anyone can use it:

Well, this sounds like a roadmap for threatening a spouse and getting away with it. So 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.

This reminds me of the claims about how a "source protection" law for journalists wouldn't be any good because anyone can claim to be a journalist. The answer, again, should be so what? Beyond the fact it's crazy unlikely that everyone who is actually threatening their ex-wives are going to make it rhyme and claim it's just verse, the actual issue at law here makes this question totally irrelevant. The issue is whether or not there was a "true threat" at all, and if Elonis actually intended to do anything or if he was just mouthing off.

And, indeed, the court does wrestle with what the hell "true threats" mean, with Justice Kennedy, in particular, finding that concept (from the Supreme Court of the past) to be a particularly unhelpful phrasing. Right out of the gate at the beginning he noted:

I'm not sure that the Court did either the law or the English language much of a good service when it said "true threat." It could mean so many things. It could mean that you really intend to carry it out, A; you really intend to intimidate the person; or that no one could possibly believe it.

Meanwhile, Justice Ruth Bader Ginsburg noted the problem of showing someone's mindset:

How does one prove what's in somebody else's mind? This case, the standard was would a reasonable person think that the words would put someone in fear, and reasonable people can make that judgment. But how would the government prove whether this threat in the mind of the threatener was genuine?

Again, I don't think anyone can (or should) prove what's really going on in someone's mind, but it seems like it's perfectly reasonable to explore if there is any other evidence to support the idea that someone is out to do someone harm, that goes beyond just posting about it on Facebook (which, frankly, seems like a really dumb way to plan out how to harm someone, seeing as you've made it pretty clear you've done any such harm). But, even that doesn't fully cover the issue in the case, which focused more on whether or not Elonis wanted his wife to be afraid, rather than if he was actually intending to do her harm (and, yes, there's a fine line mixed in there somewhere).

No doubt, Elonis did an awful lot of things that were clearly designed to upset his ex-wife. But how much of that is protected online speech? As always, reading the tea leaves from oral arguments is not a wise move, so it's tough to say which way the Court will actually decide. But, as Sarah Jeong recently noted in a great writeup for The Verge, this case could have a widespread impact on issues related to online harassment and bullying online, no matter which way the ruling goes. That article compares some of Elonis' "lyrics" and actions with the threats often posted by internet trolls threatening to kill or rape people they disagree with -- and, further, notes that the increased discussion around these issues may play into how whatever test the Court settles on will be applied in practice. In other words, this case, no matter how it's decided, is likely to have a widespread impact.

Filed Under: anthony ellis, anthony kennedy, free speech, harassment, john roberts, lyrics, ruth bader ginsburg, samuel alito, social media, supreme court, threatening speech, true threats