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Tuesday, June 2, 2015

SCOTUS Unclear in Facebook Threat Case

SCOTUS issued a decision we've been tracking since it was argued before the High Court in December. Elonis v United States involved threats made by a former carnival worker via Facebook against his ex-wife, local law enforcement and others.

Anthony Elonis adopted the rap handle Tone Dougie, spreading his violent rap lyrics across his social network and drawing the attention of federal authorities. His eventual prosecution and jury conviction have raised the issue of free speech under the First Amendment within the context of the Internet and its ubiquitous social networks.

A 1939 federal law prohibits communicating threats that go across state lines. Elonis issued communications through his FB account, in the form of Emminem-style rap lyrics, that referenced his desire to kill his former spouse, injure his co-workers, blow-up kindergartners, and slit the throat of the FBI agent dispatched to investigate the offending posts.

Elonis' legal team says the statements were therapeutic, made in response to his ex-wife leaving him and taking his children. As such, his lawyers asserted Elonis was cloaked with the protection afforded by the First Amendment's free speech clause.

The United States Attorney, on the other hand, asserted that the FB posts were clear threats and that alone is sufficient to support a conviction under the threat law, regardless of Elonis' state of mind; his mens rea. The jury conviction was therefore properly established by the simple showing that threats had been made, according to federal prosecutors.

Without even addressing the First Amendment claim raised in the briefs and at oral argument, Chief Justice John Roberts vacated the jury conviction, remanding the case to the Third Circuit for further proceedings and leaving Mr. Elonis' fate less than clear. The 7-2 decision focused on the standard of proof relative to the threats that were made, holding that mere negligence -the failure to appreciate a legal risk- was insufficient to support a criminal conviction.

If the Third Circuit orders a new trial, which is now possible due to the remand, Elonis could avail himself of a convincing double jeopardy argument. Alternatively, the Third Circuit could apply a new theory of mens rea posited by Justice Samuel Alito; that a reckless mens rea, rather than ordinary negligence, is required for a conviction under the interstate threat law.

As SCOTUS watchers, we here at the Law Blogger often see the High Court doing everything possible to avoid constitutional pronouncements. Here, the Roberts Court obviously avoided addressing what many legal scholars see as the root legal issue in cases like these: is a federal law that prohibits speech in the form of a threat, transmitted electronically and thus through interstate commerce, unconstitutional on its face.

Or does the intent of the threat maker matter and if so, what is the standard of proof of such evil intent. The question remains unanswered.

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