Wednesday, June 25, 2014

SCOTUS Set to Hear Arguments in 1ST Amendment Case - U.S. Vs. Elonis

What is U.S. Vs. Elonis, and WHY is it SO IMPORTANT? 

Anthony Elonis is an individual in the commonwealth country of Pennsylvania who was arrested after what he says was simply the act of "venting" on Facebook.  Elonis wrote status updates such as:
"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 that I'm not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife."
According to Elonis, he obtained the above words from The Whitest Kids U' Know, in which comedian Trevor Moore begins "Did you know that it's illegal to say, 'I want to kill the president of the United States of America.' "

Elonis was subsequently arrested, tried, and convicted. The court gave Elonis 44 months in prison, followed by a term of supervised community release. Criminologist Rob D'Ovidio of Drexel University is watching this case closely.

Pennsylvania isn't part of the U.S.? 

Yes, the term "commonwealth country" was used in place of the term "state". Legally, a commonwealth is not a state and does not enjoy state status in the union of U.S. States. The reason for a commonwealth being only that has to do with how much of the U.S. Constitution and U.S. Bill of Rights was ratified by a territory wishing to become a state and enjoy full status as a state in the union of U.S. states. There also needs to be a constitutional convention in which one third of state legislatures vote on things such as which territory can join the union of U.S. states.

For exactly these reasons, Shortwave America is treating Pennsylvania as a separate country within U.S. borders until there is evidence to suggest otherwise. SCOTUS cases involving commonwealth territories are always difficult for the court because a commonwealth draws their own law, and their laws are usually out of date and out of synch with the current day. Commonwealth territories are almost always more concerned about tradition and image than balancing the rights of people. 

The 1st Amendment, Threats, Misconduct, and Reasonable Restrictions on Speech

Elonis' case has traversed the court system, and now the U.S. Supreme Court says they'll hear the case and make a decision. Right from the Official SCOTUS Blog, Shortwave America has this tracking available: 

DateProceedings and Orders
Dec 20 2013Application (13A695) to extend the time to file a petition for a writ of certiorari from January 15, 2014 to March 7, 2014, submitted to Justice Alito.
Jan 6 2014Application (13A695) granted by Justice Alito extending the time to file until February 14, 2014.
Feb 14 2014Petition for a writ of certiorari filed. (Response due March 21, 2014)
Mar 12 2014Order extending time to file response to petition to and including April 21, 2014.
Mar 21 2014Brief amici curiae of Thomas Jefferson Center for the Protection of Free Expression, et al. filed.
Apr 21 2014Brief of respondent United States in opposition filed.
May 5 2014Reply of petitioner Anthony Douglas Elonis filed.
May 6 2014DISTRIBUTED for Conference of May 22, 2014.
May 27 2014DISTRIBUTED for Conference of May 29, 2014.
Jun 2 2014DISTRIBUTED for Conference of June 5, 2014.
Jun 9 2014DISTRIBUTED for Conference of June 12, 2014.
Jun 16 2014Petition GRANTED In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."

As we can see, SCOTUS is looking at what is known as "statutory interpretation". This encompasses statutory scheme, statutory design, and statutory intent and spirit just to start with. The statutory interpretation of a threat is usually narrowed down to whether or not a person on the receiving end of a threat could reasonably feel as if they were going to be in reasonable jeopardy of being battered, and if he person making such threat did so knowingly, intentionally, and without legal justification.

The issue before SCOTUS is now precisely the following: (1) 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; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

How do you go about proving beyond the shadow of a doubt (remember, this is a criminal case from which the SCOTUS involvement has arisen)  that someone INTENDED to threaten someone such that they were in real and reasonable fear of receiving a battery? There usually needs to be what we know as intent to further the crime instead of an act of actual furtherance. 

In some states, the legal term for a threat varies. One state may call it simple assault, while another may call it something like "terroristic threats" or "making a threat to commit battery", or something similar along these lines. Many have questioned the constitutionality of laws against making threats for the reason that deciphering real intent to further the act versus something said in a moment of anger and other resulting high emotions is most times extremely difficult because it creates a "hear say" situation whereby it is simply one person's word against another person's word. 

The Supreme Court will consider if Elonis' language was a "true threat," which the lower court defined as speech that is so clearly objectionable, any objective listener could be scared.

The question here that should hopefully be taken in by the court is: If any reasonable objective listener could be scared, is it really a threat, or is it more along the lines of disturbing the peace or disorderly conduct? Both of these named things are criminal acts, but of lower seriousness. 

In all of these details, do the way these laws are prefaced and written rise to such a level that the first amendment to freedom of expression is violated? Do we need to raise the bar for defining a real threat versus conduct that is only mildly to moderately scary / disturbing? 

When looking at speech, no matter where it's done, we always refer to two things: The Miller Test (also called the Three Prong Obscenity Test) in MILLER v. CALIFORNIA, 413 U.S. 15 (1973)
413 U.S. 15
, and Time and Place Restrictions applied to the first amendment. Also, as shown above, the Virginia Vs. Black in 538 U.S. 343 , 155 L.Ed.2d 535 is being looked at when balancing the matters of this case.  

Virginia Vs. Black was based upon the following facts:  "Respondents were convicted separately of violating a Virginia statute that makes it a felony "for any person ..., with the intent of intimidating any person or group ..., to burn ... a cross on the property of another, a highway or other public place," and specifies that "[a]ny such burning ... shall be prima facie evidence of an intent to intimidate a person or group." When respondent Black objected on First Amendment grounds to his trial court's jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred, the prosecutor responded that the instruction was taken straight out of the Virginia Model Instructions. Respondent O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality."

Communication while in a psychological state of emotional turmoil (anger, high anxiety, passion arising from a closely held belief system, etc) and behavioral criminality are almost always dependent upon context in each different situation since the police, prosecutors, and even the court knows that no situation is the same. 

When looking at whether nor not a statute is unconstitutional, we look at two elemental questions: 

1.Is it unconstitutional on its face? Meaning we ask "is it unconstitutional no matter what?"  
2. Is it unconstitutional as applied? Meaning we ask: "was one person or one group of people treated differently than another in the same or substantially similar conduct?" 

First amendment reasonable restrictions on speech: Time, Place, and Manner attach to the first amendment in a four part test.

1.  Does the regulation serve an important governmental interest?
2.  Is the government interest served by the regulation unrelated to the suppression of a particular message?
3.  Is the regulation narrowly tailored to serve the government's interest?
4.  Does the regulation leave open ample alternative means for communicating messages?   

What the court (SCOTUS) does is to take all of this together, and sometimes they may even consider whether or not something new needs to be added, enhanced, modified, or even taken out. The court will also be looking at the usual standard of taking the speech all together with the totality of facts and circumstances, and deciding what was reasonable under law and what wasn't. 

Media and Entertainers Could Get Swept - Up in a Bad SCOTUS Decision

If SCOTUS decides that a threat is defined exactly by what Elonis did, then various media and entertainment people can get caught up in the aftermath of bad interpretations, bad legislation that will surely follow, and lots of people will end up losing their freedom and liberty because all it will take is some overly - sensitive individual or a smart aleck to say they "feel threatened" and that defendant will be arrested, held in jail, and tried. The circuit courts across our nation will be overrun with threat cases, and everyone will have to worry about what they say.