On June 1 the United States Supreme Court decided Elonis v. United States, arguably the most anticipated First Amendment case of the 2015 term. The case had the eye of average citizens as well as First Amendment attorneys and scholars because of its potential impact on one of the most popular social media applications in the country—Facebook. Leading up to the case I wrote on MLonML about the potential stakes of Elonis in a post previewing the case and a post detailing its place in the overall landscape of the 2015 Supreme Court term.
Many saw the Elonis case as a chance for the Supreme Court to address the true threats doctrine in light of modern online communications. Instead, the Court adjudicated the case based on statutory interpretation. I discussed the Court’s conclusion in Elonis and the questions left unanswered in an article featured on the Interdisciplinary Internet Institute titled, “Elonis case decided by U.S. Supreme Court leaves lingering questions for online speech.”
Security expert Bruce Schneier’s recent article for Forbes, “Everyone Wants You To Have Security, But Not From Them,” provides insight into a number of privacy topics. Schneier described how private tech companies like Google, Apple, and Facebook and government entities want your data to be secure – but only from their competitors. Schneier said private companies use your data for proprietary gain, and the government uses your data for “security purposes.”
The most interesting part of Schneier’s piece was his final paragraph. Here, he explained how he would solve the privacy problem:
… any long-term security solution will not only be technological, but political as well. We need laws that will protect our privacy from those who obey the laws, and to punish those who break the laws. We need laws that require those entrusted with our data to protect our data. Yes, we need better security technologies, but we also need laws mandating the use of those technologies.
For more from Bruce Schneier, you can read his blog “Schneier on Security” or new book, “Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World.
The United States Supreme Court’s latest term beginning Monday will heavily feature the First Amendment. This term is the 10th under Chief Justice John Roberts and the fifth with the current slate of nine justices. The Court will tackle issues such as voting rights, searches and seizures, and white collar crimes, but various aspects of the First Amendments will be at play in four cases:
- Elonis v. United States (Oral Arguments: December 1): Elonis involves the prosecution of an aspiring rapper for making alleged “true threats” on his Facebook page. For example, Elonis posted the following to his Facebook page:
Did you know that it’s illegal for me to say I want to kill my wife?
The question before the court is whether the First Amendment requires proof of the defendant’s subjective intent to threaten or merely that a “reasonable person” would regard the statement as threatening. For a more complete analysis of the Elonis case, read my previous post “U.S. Supreme Court sneak peek: True threats on Facebook – Elonis v. U.S.”
- Holt v. Hobbs (Oral Arguments: October 7): The Arkansas Department of Corrections barred Arkansas inmate Gregory Holt from growing a beard for religious purposes. Holt sued under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA) that prevents the government from unduly burdening a person’s ability to practice religion unless there is a “compelling governmental interest.” The state is claiming there are security and safety justifications for forbidding long beards because of the potential to hide contraband or dramatically change a prisoner’s appearance.The issue before the Court is: “Whether the Arkansas Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. § 2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs.”
- Reed v. Town of Gilbert, Arizona (Oral Arguments: TBD): The Good News Community Church in Gilbert, Arizona uses signs to announce upcoming services, but Gilbert ordinances limit the size, number, duration, and location of certain signs. Different types of signs fall under different categories, and different categories have particular restrictions. The Gilbert ordinances categorized the Good News Church signs as a noncommercial “qualifying event,” so its signs must not be larger than six square feet and can only be up for a certain amount of time. Good News sued Gilbert under the Free Speech Clause of the First Amendment, claiming the ordinances were a content-based restriction of free speech, and therefore, the government needed to show a “compelling governmental interest” for such restriction and “narrowly tailor” the restriction to achieve that interest. The district court and Ninth Circuit Court of Appeals found that the ordinance was content-neutral and served “significant governmental interests and leave open amply alternative channels of communication.” The Supreme Court will review this decision and will be given a chance to clarifying a conflicting test used among federal appellate courts in determining whether these type of ordinances are content-neutral or content-based.
- Williams-Yulee v. The Florida Bar (Oral Arguments: TBD): In the least publicized case of the four, a former candidate for county judge in Florida is challenging the Florida Bar Association’s ban on judicial candidates from personally soliciting campaign contributions. The case began when Lanell Williams-Yulee decided to run for Hillsborough County judge and asked for financial contributions in a letter. Soon after, the Florida Bar filed a complaint against her under Canon 7C of the Florida Code of Judicial Conduct that says, in part, that candidates “shall not personally solicit campaign funds.” Many states have similar provisions banning personal financial solicitation by the candidates. The federal circuits are split on whether these type of provisions violate the First Amendment rights of the candidates. Williams-Yulee’s attorneys are arguing that the Canon is a content-based restriction on political speech.
Check back with MLonML as the term progresses to receive updates on these four important First Amendment decisions and to see if the court decides to review any other First Amendment cases.
The United States Supreme Court will hear arguments in Elonis v. U.S. on Dec. 1, 2014, tackling the issue of what constitutes a true threat on the Internet. In what will be the Supreme Court’s first case regarding true threats since the 2003 case of Virginia v. Black, the Court will be tasked with answering a divided question among courts regarding true threat prosecutions – whether the First Amendment requires proof of the defendant’s subjective intent to threaten or merely that a “reasonable person” would regard the statement as threatening.
A jury in the Eastern District Court of Pennsylvania convicted Anthony Elonis of four counts of threatening to injure his estranged wife, an elementary school, and law enforcement officials by posting to his Facebook page. The Third Circuit Court of Appeals affirmed. The charges stemmed from violations of 18 U.S.C. 875(c):
“Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”
Elonis, an aspiring raper, posted under the pseudonym “Tone Dougie” on Facebook. His posts included the following, among many others:
- “Did you know that it’s illegal for me to say I want to kill my wife?”
- “I’ve got enough explosives to take care of the state police and the sheriff’s department.”
- “I’m checking out and making a name for myself. Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined.”
I suggest reading the petitioner’s brief in full to get the context of these and other Facebook posts from Elonis. I also should point out that Elonis was not Facebook friends with his estranged wife nor did he tag his wife or any law enforcement official in any of the posts.
Petitioners claim the posts were not meant to be taken seriously and that Elonis was inspired by artists like rapper Eninem and the comedy troupe “The Whitest Kids U’ Know.”
The petitioner relies on the following arguments, among others, in his brief:
- The Text Of Section 875(c) Requires Proof of Subjective Intent To Threaten.
- Without A Subjective Intent Mens Rea, Section 875(c) Criminalizes Negligent Speech And Violates The First Amendment.
The United States has until Sept. 29, 2014 to file its respondent’s brief. Stay tuned to MLonML for continuous updates on the Elonis case.