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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Only one hour of oral argument has been allotted by the Supreme Court this morning in a case testing the limits of free expression on the Internet. A federal law proscribes the transmission of threats across state lines; Anthony Elonis was charged with violating that law when, after his wife filed for divorce on the same day he was fired from his job, he posted a torrent of violent rap "lyrics" on Facebook describing how he would kill her.

Later, when a female FBI agent interviewed him about the posts, he posted similar comments about the agent.  The United States cried "foul" and charged him under the federal law that criminalizes the interstate transmission of, "any threat to kidnap any person, or any threat to injure the person of another."  Elonis was jury convicted and is doing 44-months in federal prison.

Elonis' appellate lawyers' comparisons to Eminem [he used some Slim Shady lyrics] will not doubt get the justices attention.  Comparisons to the famous rapper were made in Elonis' appellate briefs filed with the High Court.

The SCOTUS, in granting certiorari, instructed the parties to address the meaning of the federal statute at issue.  This suggests that it may be able to decide this case without fully addressing the scope of the First Amendment.

On the other hand, Elonis' lawyers are touting this case as the Internet case of the century; the Internet as a megaphone for "Everyman".  Whenever it can, the SCOTUS will attempt to avoid sweeping pronouncements of constitutional law.

The NYT Magazine had this to say about the case in the Sunday paper:

The central question for the Supreme Court will be whose point of view -the speaker's or the listener's- matters.  In essence, the court will have to decide what matters more: one person's freedom to express violent rage, or another person's freedom to live without the burden of fear?

In the recent past, the SCOTUS has held that "true threats" against harming an individual may be proscribed by statute.  In this case, the High Court has to sort through what it means to "communicate" via the Internet; and what constitutes the intent to communicate an illegal threat of harm to another.

There will be plenty of lawyers dancing on the head of that pin this morning in the chamber of the SCOTUS.  For our part, we here at the Law Blogger will watch for and report to you the decision.

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By: Timothy P. Flynn

In law school back in the mid-1980s, I recall taking Constitutional Law with Professor Patrick Keenan [RIP] at the University of Detroit School of Law.  The class was one of the few that I looked forward to attending because of the dynamic subject matter and law professor.

One of the segments of the class was the First Amendment, and its free speech component.  The casebook profiled a series of cases in the chapter on the First Amendment that I had actually heard about in the media.

Yesterday, the SCOTUS granted certiorari in Elonis vs United States, a case destined for the constitutional law casebooks.  The roots of the case go back half a decade to a divorce court in Pennsylvania.

In 2009, Anthony Elonis, distraught over his contentious divorce proceedings, having lost his amusement park job, and perhaps considering himself "washed-up" at only 27, began to express his frustration on the Internet.  And when you are frustrated on the Internet, you probably turn to Facebook as the platform to express your views.  Elonis authored a series of posts on FB that mused about killing his ex-wife and others.  He also posted rap lyrics with such themes, insisting on FB, however, that he meant no harm.

In the end, convicted of a federal crime involving the electronic transmission of a threat across state lines, the man did nearly 4-years in the federal penitentiary.  His appeal of the conviction will now be decided by the highest court in the land.

Legal blogger Maureen Johnston of the SCOTUSblog framed the issue in her "Petiton of the Day" post:

Whether, consistent with the First Amendment and Virginia v Black, conviction of threatening another person under 18 U.S.C. § 875(c) 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.

The Virginia v Black case held that a Virginia statute that outlawed cross-burning was overbroad to the extent that some cross-burning may not be performed in a threatening manner.  Really?  The SCOTUS decision to grant certiorari is even more puzzling considering their rejection last year of a petition involving a litigant that posted YouTube death threats to the judge in his child custody case.

Various lower courts have utilized different standards to assess the intent behind such threats.  Elonis asserts in his petition that the "reasonable person" standard is improper in the case of social media due to the high potential for misinterpretation by viewers that do not know the declarant.  Elonis argues that his subjective intent -merely to express his frustration, not to threaten- is the standard by which he should be judged relative to the charged federal offense.

Therefore, sometime next year, SCOTUS will decide the constitutionality of 18 USC 875(c).  We will track this case and report back.

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