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Saturday, January 28, 2017

The Anthony Elonis Supreme Court Case: Free Speech Versus the Right Not To Be Threatened

     Anthony Elonis, an employee at an amusement park in Allentown, Pennsylvania, was upset when his wife Tara left him in May 2010. The couple had two children.

     In October 2010, obviously fuming over his wife's departure, Elonis posted the following message on Facebook: "If I only knew then what I know now…I would have smothered your [Tara's] ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like rape and murder." Later he wrote: "There's one way to love ya but a thousand ways to kill ya. I'm not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts."

     On November 4, 2010, Tara Elonis, fearful of what her estranged husband might do to her, convinced a judge to issue a protection order against him. Three days later, on Facebook, he responded with more threats. In the context of discussing the federal law that makes it a crime to threaten the president of the United States, Anthony Elonis wrote: "I also found out that it's incredibly illegal…to go on Facebook and say something like the best place to fire a mortar launcher at a house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sunroom."

     Elonis illustrated his Facebook posting with a map of the proposed mortar assault, his estranged wife's house. "Art," he wrote, "is about pushing the limits. I'm willing to go to jail for my constitutional rights. Are You?"

     About this time Elonis also used Facebook to threaten his fellow employees at the amusement park. He published a Halloween photograph of himself holding a fake knife to a co-worker's throat. He captioned the image: "I wish."

     Elonis' boss, after seeing the Facebook post, fired Elonis and reported him to the FBI.

     A federal prosecutor charged Elonis under a law that makes using the Internet to threaten another person with harm a crime. The case went to trial in 2011 and resulted in Elonis' conviction.

     During Elonis' three year stretch in federal prison, his attorney filed a First Amendment appeal arguing that the federal government had violated his client's right to free speech.

     The U.S. Supreme Court agreed to hear Elonis' First Amendment challenge of his conviction. Under federal case law, so-called "true threats" are not protected as free speech under the First Amendment. To constitute a criminal act, such a threat does not have to be carried out. Moreover, prosecutors do not have to prove even an intent to carry out the threat. (Conspiracy offenses require an overt act and criminal attempt crimes must include a substantial step toward the commission of the crime.)

     In a 2003 Supreme Court decision, Justice Sandra Day O'Connor wrote that the law was intended to protect people "from the fear of violence and from the disruption that fear engenders."

     At his criminal trial in 2011, Elonis' attorney argued that threats alone are not harmful and that they therefore come under the protection of the First Amendment. Elonis took the stand on his own behalf and testified that he had not made a "true threat" against his estranged wife because he didn't have any intention of hurting her. In justifying his Facebook threats, he said, "This was for me therapeutic." He said it helped him deal with the pain of losing his wife.

     The victim, Tara Elonis, took the stand for the prosecution and said, "I felt like I was being stalked. I felt extremely afraid for me, my children, and the lives of other family members."

     The principal constitutional issue before the Supreme Court involved whose point of view--the people who threaten or the people who are threatened--was the governing rationale. The American Civil Liberties Union (ACLU) weighed in on Elonis' behalf. Attorneys for the activist group wanted a higher legal standard for the criminalization of speech to avoid sending people to prison over misunderstandings. The ACLU asked the court to make speech a crime only when the prosecutor could establish a clear intent to carry out the threat.

     On June 1, 2015, the U.S. Supreme Court, in a 7-2 decision, reversed the Elonis conviction. (I do not agree with this decision. The victim's fear of an attack in this case was reasonable, therefore the threat was real and constituted a crime. Criminal intent can be reasonably inferred from a person's actions and words.)

     

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