Nahmod Law

Prior Related First Amendment Posts

I previously blogged about some of the basics of free speech doctrine.

I addressed its three primary rationales–marketplace of ideas, self-government and individual autonomy–on January 19, 2010. I next considered the roles of content, medium and forum in free speech jurisprudence on January 29, 2010. I then discussed the early years of free speech doctrine–the clear and present danger years–on February 14, 2010. Finally, in an internationally popular post for non-lawyers, as part of my Know Your Constitution series, I addressed hate speech on December 4, 2013.

In 2015, the Supreme Court will decide Elonis v. United States, No. 13-983 (argued 12-1-14), a case involving internet threats. So I’d like to say some things about the relevant free speech jurisprudence as well as the case itself.

Free Speech Background: The “Multi-Tier” Approach and True Threats

There is,  it may surprise some to know, a hierarchy of speech that receives greater or lesser protection depending on its content.  Political speech receives the highest First Amendment protection; commercial speech typically receives intermediate level protection; and obscenity, fighting words, child pornography and “true threats” receive no First Amendment protection at all. These last kinds of speech are in a kind of First Amendment hell, so to speak, because each of them is considered to have little or no First Amendment value. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Once it is determined that the relevant speech fits into this last group, then it is not covered by the First Amendment.

The Supreme Court defined a true threat in Virginia v. Black, 538 U.S. 343 (2oo3), a case involving cross-burning, in the following way: the speaker means to communicate a serious expression of  intent to commit an act of unlawful violence against an individual or group of individuals. The essence of a true threat is intimidation because it places the victim in fear of bodily harm or death, although the speaker need not necessarily intend to carry out the threat. In Black itself, the statute required an intent to intimidate and various persons testified that they were in fact intimidated.

The theory is that this kind of threatening speech–assuming that one considers it “speech” rather than “conduct”–deserves no First Amendment protection because it silences speech by placing victims in fear of bodily harm or death.

The Issue in Elonis: Must the Defendant Subjectively Intend to Intimidate?

Elonis was convicted under 18 U.S.C. § 875(c) for “transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another….” More specifically, he was convicted of using the internet over a period of time to threaten his wife,  employees of the Pennsylvania State Police and Berks County Sheriff’s Department, a kindergarten class, and an FBI agent. The defendant contended the trial court incorrectly instructed the jury on the standard of a true threat. The court gave the following jury instruction:

A statement is a true threat 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.

Elonis contended that the Supreme Court in Black had effectively required, as part of a valid true threat conviction, that a defendant must subjectively intend to intimidate, that he did not subjectively intend to intimidate, and that it was not sufficient that he could reasonably foresee (a negligence standard) that his or her statement would be interpreted as expressing an intention to commit bodily harm or cause death. The Third Circuit rejected Elonis’s argument, and the Supreme Court granted certiorari.

Comments

1. The Court could model the true threat doctrine on the incitement doctrine of Brandenburg v. Ohio, 395 U.S. 44 (1969), and rule that a true threat defendant (1) must subjectively intend to intimidate and (2) the statement must reasonably be so understood by its targets. This would provide the maximum breathing space for free speech, but at a major cost to those who were targets of a “clever threat-maker” as Elonis himself may have been.

2. The Court could model the true threat doctrine on the fighting words doctrine which, as Justice Kagan pointed out in oral argument, only requires an inquiry into the content of the speech–do the words amount to in-your-face epithets or personal abuse likely to provoke the average person to retaliate?–and not the subjective intent of the speaker. This position seems close to that of the Third Circuit in Elonis.

3. The Court could find a middle-ground state of mind requirement such as recklessness, by analogy to the knowing or reckless falsehood defamation standard of New York Times v. Sullivan, 376 U.S. 254 (1964). This would minimize the problem of the clever threat-maker but also provide a bit more free speech breathing space on the internet and elsewhere than the Third Circuit’s negligence approach. Moreover, it would preclude the criminalizing of statements on the internet and elsewhere that were not intended to intimidate but did so innocently in fact even if later determined to have been negligent.

Although predicting Supreme Court outcomes is not for the faint of heart, I expect that the Court will go with a variation of #3.

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