Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, says some big constitutional questions remain open for debate after the Supreme Court’s ruling on apparently threatening speech on Facebook.
THE STATEMENTS AT ISSUE:
The conviction in this case “was premised solely on how the [Facebook] posts would be understood by a reasonable person. Such a ‘reasonable person’ standard is…inconsistent with the conventional requirement for criminal conduct – awareness of some wrongdoing…Wrongdoing must be conscious to be criminal….Given our disposition, it is not necessary to consider any First Amendment issues.”
– Excerpt from the opinion by Chief Justice John G. Roberts, Jr., on Monday in the Supreme Court’s first decision dealing with violent ranting on the Internet, in the case of Elonis v. United States. The ruling focused on the meaning of a federal law against communicating threats, and left unanswered the law’s constitutionality as it applies to digital expression.
“Adopting [Anthony] Elonis’ view would make threats one of the most protected categories of unprotected speech, thereby sowing tension throughout our First Amendment doctrine. We generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech.”
– Excerpt from a dissenting opinion on Monday by Justice Clarence Thomas, rejecting the claim that it would violate the First Amendment to convict a person of making threats via the Internet if there was no proof of a specific intent to actually issue such threats.
WE CHECKED THE CONSTITUTION, AND…
A tradition that is deeply set in history dictates that the Supreme Court will not decide a constitutional question if there is another way to resolve a case. It is probably the most conspicuous form of judicial restraint, and it is usually wise: it is so hard to change the Constitution after a decision by the court that rulings should not be set prematurely in constitutional stone.
That is particularly true when the Justices are confronting something new or novel in American society. The growth of the digital world has generated a lengthening list of questions about how far free expression should be allowed to remain free in the ubiquitous forums of the Internet. The court has thus said, on several occasions, that it is not a good idea to settle too much First Amendment law in that realm too soon, because the technology is changing so rapidly.
But a developing constitutional controversy can be so intense and have so much at stake that the court may not fulfill its ultimate responsibility if it takes a pass in such circumstances. One such controversy may be the one that now clearly exists over the sometimes deeply disturbing uses of social networking sites to engage in violent expression, frequently targeting specific individuals.
What tools does society have to monitor, and perhaps even to regulate, such expression? It has been quite clear, from the earliest days of the Internet, that it is not possible to set up a workable regime of government censorship of digital expression. It is far from clear, for example, how one would write a legal code for “good” and “bad” expression in a medium that is used by so many people of such disparate views and values.
So, if there is to be public policy aimed at ending the abusive use of digital expression, the most likely candidate for government action is criminal prosecution. That is where the federal Justice Department turned when a Pennsylvania man some five years ago began venting on his Facebook page.
Anthony Douglas Elonis’ wife had just left him, and she took their two young children with her. Devastated by his loss, and in fits of explosive anger, he began posting a series of violent musings about how he could kill his estranged wife, police officers in his community, and kindergarten children in nearby schools. When federal agents started monitoring his postings, and sent an FBI investigator to his house, he posted about how he had pondered cutting the female agent’s throat.
He had sense enough, as a legal matter, to try to discount the substance of what he was writing by saying it was being done as a form of therapy for his depression, and by suggesting that he should have as much free-speech right in the use of violent imagery as rap music performers.
Federal prosecutors saw his postings differently, especially when his wife told of her genuine fear, and other targets took steps to try to protect themselves from him. What the prosecutors then did was to seek criminal charges against him under a 1939 law making it a federal crime to communicate threats. It was, obviously, a law that was enacted without any contemplation of what expression would be like in the world some three-quarters of a century later. A jury convicted Elonis of four of the five charges of making threats under that law, and he was sentenced to 44 months in prison.
After failing in challenges in lower courts, Elonis took his case on to the Supreme Court, raising only a claim that his Facebook commentaries were protected by the First Amendment. His lawyers argued that, in order for the 1939 law and convictions under it to withstand free-speech challenges, prosecutors had to offer proof that the writer had a specific intent to actually threaten someone. He had no such intent, his attorneys contended.
The Supreme Court agreed to hear his case, but the Justices on their own added another question to the review: did the wording of the 1939 law require proof of such an intent to harm? That was, of course, a cautious thing to do, partly because it offered the chance to avoid providing an answer to Elonis’ constitutional question.
And that is how the case ended on Monday. Leaving aside the First Amendment issue, the court in an 8-to-1 decision ruled that the threat-communicating law could only apply when prosecutors offered proof that the accused person had a mental state that inclined him to committing a crime. A conviction could only be based on evidence that the individual did send out threatening language, and knew that it contained a threat the ruling said. It was not enough, Chief Justice John G. Roberts, Jr., wrote for the majority, to show that the accused person was aware of some legal risk, and went ahead anyway – that is, acting negligently.
The opinion said nothing at all about what First Amendment restraints on such prosecutions would be, and nothing at all about whether the wide-open nature of Internet expression would make a constitutional difference. Judicial caution, of course, had prevailed, but an urgent constitutional question lingers.
