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.

NPR has their own story on this.

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territories are always difficult for the court because a commonwealth draws their own law, and their laws are usually out of date and out of synch with the current day.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: 

Date	Proceedings and Orders
Dec 20 2013	Application (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 2014	Application (13A695) granted by Justice Alito extending the time to file until February 14, 2014.
Feb 14 2014	Petition for a writ of certiorari filed. (Response due March 21, 2014)
Mar 12 2014	Order extending time to file response to petition to and including April 21, 2014.
Mar 21 2014	Brief amici curiae of Thomas Jefferson Center for the Protection of Free Expression, et al. filed.
Apr 21 2014	Brief of respondent United States in opposition filed.
May 5 2014	Reply of petitioner Anthony Douglas Elonis filed.
May 6 2014	DISTRIBUTED for Conference of May 22, 2014.
May 27 2014	DISTRIBUTED for Conference of May 29, 2014.
Jun 2 2014	DISTRIBUTED for Conference of June 5, 2014.
Jun 9 2014	DISTRIBUTED for Conference of June 12, 2014.
Jun 16 2014	Petition 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. 

Open Letter To The U.S. Amateur Radio Community and The ARRL - Field Day, Contesting, and Emergency Communications

This is directed at amateur radio operators from the West coast to the East coast of the U.S. and the ARRL. If this makes you uncomfortable, or otherwise finds you severely upset in regards to content, no one really cares. Go complain to someone who'll play their tiny violin for you.

This author, like many others in amateur radio, got into this for the love of radio and learning the science of radio communications since it teaches a LONG list of useful, practical, and needed communications and research skills. Amateur radio can help teach mathematics, geography, culture, earth and space sciences, etc. Radio can also be a form of useful medical and mental health therapy for those with chronic illnesses who are sometimes house-bound, or otherwise can't always get out and about. Radio gives these folks a way to be part of the outside world because it is a form of human interaction.

However, a collective of many amateur operators have found that the whole emergency aspect has been over-blown, and made to be the holy grail of amateur radio, especially the yearly nationwide "Field Day" event held by the ARRL! The ARRL (American Radio Relay League) has been dishonest about what Field Day really is.

Field Day is billed by the ARRL as being all about emergency communications. What a line of Bullshit! Field Day is a CONTEST and has nothing to do with practicing emergency communications skills. Field Day brings out two different crowds...the "whackers" or what we otherwise call the "whack-out and whack-off crew" who falsely think of themselves as THE experts, and also tend to look ridiculous in all of their unneeded emergency garb, coming awful close to false personation of emergency personnel.

The next crew in the emcomm "Field Day" crowd are your contesters. These are your technically adept, highly skilled, but rude and obnoxious people with zero social or conversational skills who love nothing more than making meaningless contacts where everyone is 5/9, and all you have to do is make a quick exchange of callsigns and tactical or logistical information that sounds EXACTLY like this: Operator callsign followed by operation class, and their state with their city.
THAT is NOT practicing emcomm skills, it's contesting!

The same exchange happens with Digital modes as well. Then there's always the argumant that it "exposes new amateur operators to radio", NO....new amateur operators don't need to be "exposed" to radio, they need to start using their license, whatever class they hold, to start learning the science and art of communications.

For far too long, amateur radio has been all about the boys. Amateur radio has been overrun for a long time with meatheaded, super macho - jocks, republican and libertarian conspiracy junkies who need serious psychiatric help, rich libs and neo-libs who want everyone censored if it doesn't tow the ARRL party line, and who also subscribe to the "separate but equal" and NIMBY mentalities. These are factual observations made over a period of years.

Chicago / Suburban Amateur Radio Culture as Example of Rampant Social and Political Dishonesty 

Earlier today, this very discussion about field day and emcomm vs. contesting took place on the NS9RC repeater in Chicago, Illinois between two parties who will not be named, but when the party divulging these facts set henceforth, the  "repeater trustee", Don - KK9H, openly censored the radio op on the air and said "why don't you keep your opinions to yourself, you can't say that on THIS repeater, and we don't want to hear it" Obviously, the op struck a nerve and the repeater organization can't deal with hearing the truth, and so they now call truth an opinion and tell people to be quiet. Typical liberal side-stepping from the rich, far north, suburban spoiled brats. What we have here is a good old case of "affluenza" where entitlement tries to overrun facts by using brute force to unfairly stifle meaningful and needed discussion in the amateur radio community.

Don - KK9H, is your typical one-way conduit of information type of guy who is backed by his fellow sufferers of affluenza at the North Shore Radio Club. What they do is to create a false dichotomy, and a one - way tolerance in which they'll have you around for so long as you buy their brand of bullshit and never talk about what's real in the wider amateur radio community outside of secret closed door discussions. THAT is also a DIRECT show of culpability towards intentional dishonesty and goes to a lack of upstanding collective character. This is something CFMC used to be known for.

In being communicators, is it not part of our mission to have these discussions about HOW and WHY we use communications, the issues at hand, and bring things into the light even if it's unpopular and uncomfortable? Turning your head or burying your head in the proverbial sand doesn't help anyone, nor does it go to helping any certain cause. What it does is allow community-wide problems to fester as the open, gushing wound it is. The necessary first-aid for this is to stop the bleeding, and prevent infection. This is done only by dealing with the problems instead of practicing avoidance, except when and where avoidance is used only AFTER the issues have been dealt with as a sort of preventative care.

ARRL Field Day Rules Prove Field Day To Be About Contesting

The ARRL sets up rules for all of the so - called "radio sports" they get into and offer to the amateur radio community at large. These are what we know as contests. Contests are in the factual sense, the bane of amateur radio because of the behavior on display, and because they take up significant portions of the bands, and therefore use up unnecessary bandwidth. 

ARRL Official Field Day website.  Official ARRL Field Day Rules for 2014. Let's see, shall we? Yes, just as suspected, the website when used in conjunction with the ARRL rules proves beyond the preponderance of the evidence that Field Day is about contesting, not the practice and art of emergency communications.

What other things are missing to make Field Day about emergency communications? For starters, there are no specific emergency drills or practice emergency scenarios involved which would facilitate the basis, need, and foundation for emergency communications "practice" to be held.

With that HUGE element missing, there can be no other steps taken to have a practice emcomm session such as Field Day.

Now, if the ARRL wanted to be factually honest, they would re-brand field day as a family friendly event to present amateur radio and all of its involved / associated sciences to families and individuals from all walks of life. Get rid of the emcomm moniker, replace it with a slower tempo, non-contest, relaxing and fun sort of experience, and it can be at least 90% guaranteed that amateur radio will see new licensees. There should be testing sessions at each moderate to large scale Field Day event so people can obtain new licenses, upgrade their current licenses, etc. 

How about having some seminars on radio basics?  Talks involving multi-media presentations about being able to hear people from all over the world right from your home or your car, your bike, and making contacts with those people. How about interactive community relationship - building experiences whereby the public can see all the different aspects of amateur radio at play, including satellite stations? 

Young people from the earliest of ages, to the young adult 20s and 30s crowds are heavily involved in computers today. We should be teaching them how to use amateur radio to set up new and innovative uses for radio in respect to computers and social networking so that when there is no cellular signals, and / or no internet, radio will have a new use. This will also give the radio community ideas for emcomm drills that can be practiced, especially in the event of cyber-terrorism. 

The advanced world has made the mistake of not properly securing various internet and computer related things, so it would be entirely possible that because our electrical systems, our water systems, our mail systems, payment and banking systems, automotive applications and various other important parts of electronic infrastructure is, for the most part, tied together by way of computers, if a cyber-terror group were to attack with any sort of strong, directed, sustained attack, amateur radio could be there as the final means of communication that cyber-criminals / cyber-terrorists wouldn't be able to screw with.

Closing Remarks

Given the points made in the above three sections, and the facts presented, the amateur radio community nationwide, and the ARRL would be well-served to be more realistic about where they belong in the scheme of our nation's emergency communications infrastructure, stop playing the immature ego games, start discussing and addressing real problems in a public and visible manner so as to be 100% transparent, and start painting an honest picture about what amateur radio is and isn't, especially in regards to Field Day and emcomm.  

Stop censoring open discussion on the air simply because it makes a few jerks uncomfortable. The jerks who are uncomfortable have the option of turning the dial, turning the radio off, or going to do something else. Pandering to uptight, over-privileged, bratty, closed-minded ignoramuses is only making things worse.

Reject racial profiling, ethnic, disabillity, sex based / orientation based, gender based, and other types of already illegal discrimination in all aspects of amateur radio. Take a stand against cliques, against political and social bullying, and take a solid stand against on-air censorship when and where there are no FCC violations committed.

Take a clear stand against amateur radio ops who have certain available technology, but attempt to limit its use to "their group". We are already seeing this happen with things like TDMA, where a few individuals who may or may not be a clique or group of some sort feel they need to "approve" of someone before they mentor them in this newest radio technology and help them learn where and how to obtain the programing software, equipment, etc. Self-policing does not mean hogging an entire technology or using it to separate other ops out of amateur radio.

Overly aggressive gate-keeping needs to stop if we are to be taken seriously as today's FCC described "existing reservoir within the amateur radio service of trained operators, technicians, and electronics experts." and if we are to provide what the FCC mandates as "Continuation and extension of the amateur's unique ability to enhance international goodwill."

Entercom Sets Industry Standard For On-Air Responsibility and Communications Ethics

May 22nd started out as a glim day for those who had the unfortunate experience of listening to Kimberly and Beck in Rochester, New York on 98.9 - The Buzz. The topic of discussion on Kimberly and Beck's show was medical insurance coverage for Transgender city employees in Rochester.

What should have been a mature fact - filled discussion quickly became one false statement after another intended to shame and embarrass transgender persons, as the show aired irresponsible memes about trans persons that rose to the level of psychological violence, and possibly could have had the effect of inciting violence against trans persons simply based on old, worn out, untrue, and disproven political talking points.



Entercom Entertainment quickly fired the two show hosts, saying this: "This morning Entercom fired Kimberly and Beck effective immediately. Their hateful comments against the transgender community do not represent our station or our company. We deeply apologize to the transgender community, the community of Rochester, and anyone else who was offended by their hateful comments. We are proud of our past work on behalf of the local LGBT community and we remain committed to that partnership."

Kimberly and Beck called transgender people "nut jobs," trivialized the need for transgender health care, and played Aerosmith's Dude Looks Like A Lady throughout the segment. When a caller expressed disappointment in the hosts' transphobic commentary, another host responded "thank you, sir," in an attempt to mock the caller's gender.

1. Kimberly and Beck ignored the fact that Gender Dysphoria is a serious medical problem that is rooted in biological basis, requiring safe and effective medical treatment.

2. Kimberly and Beck did absolutely no research into what gender dysphoria is, or what it means to be transgender. Their abusive, vitriolic speech, and dangerous use of their place in the public spotlight highlighted their blatant disregard for the rights of fellow human beings.

3. The show hosts conflated gender identity with other things that are not related at all to the development of sex and gender.

4. Kimberly falsely used the presence of reproductive anatomy to spread misinformation about development of sex and gender. Playing to the false notion that trans persons, specifically transwomen, have "testosterone" and are therefore stronger than "women" gave rise to losing the fact that all women have some level of testosterone in their system.

5. Misogyny and trans-misogyny in the form of tasteless reference to female reproductive anatomy as a "back-up glove".

6. Kimberly and Beck fell so low as to introduce the "political correctness" argument when and where they say they are "used to all the nuances of desensitization".

Not ONLY were Kimberly and Beck fired, the consequences were even farther reaching for Entercom. "Critical Mass swiftly and overwhelmingly spoke out in support of transgender rights, and  advertisers were quick to pull their financial support from the program and the station." - Huffington Post

"The rallying cries of the transgender community are no longer heard only by left-leaning, insular groups without a stake in commerce, business or popular culture. Rather, issues of importance to the ever more visible transgender community are playing out on NBC and CNN, on the New York Times bestseller list and Netflix, and in the pages of this very paper." - Huffington Post

What we see here are the consequences of reckless and violent behavior. The social media reaction across the internet included volumes of transphobic responses that devolved into threats of sexual assault, and murder. In-between the violent responses to this sad event, were found thoughtful, caring, understanding, and educational comments advocating for the utmost of human rights and human decency towards transgender persons. 
   
Little did the transgender community know that BIG BUSINESS would have their back on that fateful May 22nd. While Kimberly and Beck were screaming about their "freedom of speech" which doesn't apply in the workplace, everyday people and well-known, multi-billion dollar businesses were voting with two powerful things: their money and their radio dials.

The standard of decency towards those with medical needs was given a HUGE one-up by Entercom in the best of all possible ways, as Entercom stepped - up in real time, and took a stand against hate radio for not only their own business interests, but, it made a statement that being transgender or being a person with any valid medical need is NOT a reason for ignorant, irresponsible, immature bashing of real human beings by pompous radio show hosts.   

The standard for on-air reponsibility and professional usage of communications ethics has been set by Entercom. Civility, skill, willingness to do research before presenting a discussion or a bit, and common - sense decency are called for in today's world of mass radio communications. Hopefully, this becomes a trend. 

Here are some good questions for Kimberly and Beck:

Would you have gone on the same rant if Rochester had introduced insurance coverage for lesser known, but serious medical conditions?

Would you have played a song in the background against any other legally protected group of people, simply because they have more unique medical needs than the general public?

Would you have gotten on the mic and lambasted a woman who was born without a vagina, and had to have surgery to install one after it was made for her in a lab? Surely you would have told her to pay for it out of her own pocket?

Did you know that the sort of tirade you went on is what trans people, most often trans women and ESPECIALLY trans women of color hear just moments before they are murdered for being trans?

Were you aware that screeds like you went on LIVE to who knows how many listeners, was a trigger for an untold number of transgender people? Surely, you knew that any given number of trans people with a history of surviving horrid abuse of various types, and those with severe challenges otherwise, could have been lost to suicide or their conditions made worse by hearing you dehumanize them without remorse?