In Defense of Awful Speech

by / 5 Comments / 163 View / June 25, 2014

Last week, the Supreme Court agreed to hear a case that, in all honesty, should be straightforward.  Elonis v. United States serves as a testament to our technology-overloaded times: a man, Anthony Elonis, wrote terrible, awful, disgusting threats about his now ex-wife on his Facebook page; the ex-wife justifiably freaked out and went to the police; and a lower court doled out a forty-four month sentence. Cue the squealing Free Speech advocates—including myself.

To me, at least, this is an open-and-shut case. While Elonis did write some capital-H horrifying statements, he has as much a right to say them as I do to say, “I love dogs!” The Supreme Court has an obligation to be absolutist when it comes to the First Amendment; if the Justices don’t uphold the rights that define us as Americans, they corrode the fabric of our national self-identity. That sounds melodramatic, but our rights are woven throughout American culture. We hold ourselves up to be “The Land of Liberty”, “The Home of the Free and the Brave”, and “The Last Great Bastion of Freedom.” Just turn on any country music station—you can’t get through more than four songs without hearing praise for the United States as a free nation. Freedom might not be free, but it is our signature characteristic. The Supreme Court must do what it can to uphold it.

What’s ironic is that Elonis himself knew what he was getting into. In the midst of myriad sickening posts, he also wrote on his Facebook, “Did you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences I’m not allowed to say.”

And if somebody as obviously troubled as Elonis can recognize the injustice in this situation, you know we’ve got a problem.

This case would be entirely different if Elonis had spoken these statements aloud. Had he said horrible words in public, I’m convinced our legal system would leave him alone. But social media complicates and convolutes our justice system. After all, it’s hard to make Constitution-based rulings on cases involving technology that our Founding Fathers never could have imagined.

But this case, and the attention it’s receiving, pokes at a deeper impulse of our modern culture. It hints at the panic of a society that wakes up nearly every morning and reads about a shooting. As a nation, we’ve watched terror strike at those who attempt the most innocent of actions, from going to school to running a marathon. And every time a tragedy unfolds, we point fingers at our law-and-order system and demand to know why the offenders were not stopped.

“If only the police had checked his Facebook,” we say, “they would have been able to stop this guy.”

Frankly, we’re better than this. America is better than this. We need to rise above our fear, to cut through the hectic fog of our era and at least try to see clearly. Sometimes, it’s not enough to have good intentions; we need to protect speech in its entirety, out loud or online, as long as it does not directly put anyone in danger (and there’s no evidence that Elonis’s statements themselves endangered his wife). The Supreme Court needs to overturn the ruling on this case—not for Elonis’s sake, but for ours.

  • Ryan Hopkins

    This article ignored, out of ignorance or intent, seemingly all of the legal arguments in this case.
    The Supreme Court held in Virginia v. Black, 538 U.S. 343, 347-48, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) that a subjective intent to threaten was required under the true threat exception to the First Amendment. So Elonis filed to dismiss his indictment, but the District Court found that because even if the subjective intent standard applied, Elonis’s intent and the attendant circumstances showing whether or not the statements were true threats were questions of fact for the jury. The jury found that his statements:
    “I’ve got enough explosives to take care of the state police and the sheriff’s department”
    “I was jus’ waitin’ for y’all to handcuff me and pat me down. Touch the detonator in my pocket and we’re all goin’”
    “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?”
    were true threats, as needed. In addition, the court held that the jury instruction presuming communications over the internet were transmitted through interstate commerce was supported by the precedent in United States v. MacEwan. The court also stated the objective intent standard conformed with Third Circuit precedent.
    Under 18 U.S.C. § 875(c), the definition of a true threat is 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.” And this is what the jury found.
    If that’s not sufficient, the District Court analyzed the United States v. Himelwright case 42 F.3d 777, 782 (3d Cir.1994), saying “We have held the same “knowingly and willfully” mens rea Kosma analyzed under 18 U.S.C. § 871, threats against the president, applies to § 875(c). (holding “the government bore only the burden of proving that Himelwright acted knowingly and willfully when he placed the threatening telephone calls and that those calls were reasonably perceived as threatening bodily injury”). “
    The case I assume you’d use to defend your position is the one Elonis is using Virginia v. Black when you say “Had he said horrible words in public, I’m convinced our legal system would leave him alone.” however, in Virginia v. Black the Court considered a Virginia statute that banned burning a cross with the “intent of intimidating” and provided “any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.” 538 U.S. at 348, 123 S.Ct. 1536 and in Watts v. United States, supra, at 708 [89 S.Ct. 1399] that “political hyperbole” is not a true threat, citing R.A.V. v. City of St. Paul, 505 U.S., at 388 [112 S.Ct. 2538]. I’d be interestd in hearing why the 2 of his 5 criminal statements given above look like “political hyperbole”, which would be what is exempted from the true threat test.
    If you agree that they’re not political, the true threats exception requires a subjective intent to threaten. How is that done? First, the prima facie evidence provision did not allow the factfinder to consider the context to construe the meaning of the conduct, id. at 365-66, 123 S.Ct. 1536, whereas the reasonable person standard does encompass context to determine whether the statement was a serious expression of intent to inflict bodily harm. But, according to the that is not an issue here because the government had to prove that a reasonable person would foresee Elonis’s statements would be understood as threats.
    The First Amendment and speech in the United States is an intricate and fascinating subject and it’s a shame there are articles that promote uninformed arguments like this one.

  • Sitara

    I have to agree with Ryan. Though I applaud the aspirational quality of this piece (not to mention its great writing), it does not actually acknowledge or incorporate First Amendment jurisprudence. Elonis also presents significant policy implications that will likely weave into the oral arguments and briefs brought before SCOTUS. Unfortunately, such policy implications were similarly ignored in this piece.
    The author implies that the 1A provides a blanket protection. In reality, there are gradations of speech–some protected, quasi-protected, and others not protected at all. Examples of unprotected speech include defamation and obscenity. Quasi-protected speech includes commercial speech (eg. advertising and the like). The question I imagine the Court will address in Elonis is whether the type of speech in question (containing brutal and graphic threats directed towards the spouse) falls in its own category of quasi-protected or even unprotected speech. If the Court finds this to be the case, then a powerfully sweeping protection of the speech in question would not be applied.
    The grave policy implications of this case also merit discussion. Unfortunately this piece completely omits a huge concern animated by Elonis, which highlights the poignant problem of cyber-bulling, hate crimes, and egregious sexual harassment published on the internet forum. Gender issues feature prominently as the incidences of violence threatened against women online have become outrageously commonplace and frightening. I have attached a great article by Jessica Valenti (a columnist for the Guardian) who speaks more eloquently on the matter. I hope this helps! At any rate, thank you for sharing your piece with us and inciting this informative discussion. This is the type of valuable speech the Amendment aims to protect (the “marketplace of ideas,” if you will), not Elonis’ hateful, violent, and threatening speech. Cheers!
    http://www.theguardian.com/commentisfree/2014/jun/18/free-speech-online-creeps-cyberbullying-laws