Article on Elonis case and online speech featured on The Interdisciplinary Internet Institute

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.”

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Don’t shout “Ebola” on a crowded bus

While many agree that some media outlets have been hyperbolic in their speech reacting to Ebola during the past few weeks, certain language by the public about Ebola will not be shrugged off as an overreaction—it can be criminal.

On Oct. 13, a masked man and a woman entered a Los Angeles bus. They rode the bus for a few minutes before the man told the bus driver, “Don’t mess with me; I have Ebola!” Then, the man threw his mask on the bus floor and the two passengers exited the bus. The bus driver immediately took the bus to its station where the driver was quarantined and the bus was thoroughly cleaned, costing taxpayers thousands of dollars. Local police considered charging the man with making a terrorist threat.

This hasn’t been the only incident of people falsely claiming to have Ebola in public. The Los Angeles Times reported that there has been many false Ebola alarms at U.S. airports. Additionally, The Huffington Post cited numerous Ebola hoaxes, including three high school girls in California and a man flying from Philadelphia to the Dominican Republic.

Eugene Volokh, a UCLA law professor and blogger for The Washington Post’s Volohk Conspiracy, assessed the legal consequences of someone claiming to have Ebola.  On his blog, Volokh said the words spoken on the California bus didn’t squarely fit as a true threat or fighting words (categories of unprotected speech) but that:

“The shouting is pretty clearly constitutionally unprotected, because it’s a knowing falsehood that has the potential to cause direct and substantial harm.”

Volokh alluded to the 2012 United States Supreme Court case of United States v. Alvarez in which the Court struck down a federal law that criminalized false statements about receiving military medals. Volokh said that as opposed to Alvarez, here, in the Ebola/bus situation, as long as the government enacted an appropriately tailored restriction, the government’s interest in safeguarding the public from a communicable disease is much stronger than protecting from dilution of a medal’s prestige.

In a later post, Volokh pointed out the California law that officials could use to charge the man on the bus. California Penal Code § 148.3 states: “Any individual who reports, or causes any report to be made, to any city, county, city and county, or state department, district, agency, division, commission, or board, that an ’emergency’ exists, knowing that the report is false, is guilty of a misdemeanor . . . .” “Emergency” is defined as any condition that results in the response of a public official or any condition that could jeopardize public safety or could result in the evacuation of any area.

A person claiming to have a communicable disease such as Ebola would be reporting an emergency that could jeopardize public safety and lead to an evacuation of the premises. In the Los Angeles bus example, the man’s words led to the bus being evacuated, the driver quarantined, and the authorities having to clean the bus.

So although dialogue and open conversation about Ebola should be encouraged, falsely claiming to have the disease could result in a criminal charge. Just as you shouldn’t shout “fire” in a crowded theater—in 2014, don’t shout “Ebola” on a crowded bus.

U.S. Supreme Court term begins with First Amendment free speech and free exercise implications

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:

  1. 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.”

  2. 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.”
  3. 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.
  4. 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.

U.S. Supreme Court sneak peek: True threats on Facebook – Elonis v. U.S.

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:

  1. The Text Of Section 875(c) Requires Proof of Subjective Intent To Threaten.
  2. 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.