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What's In Your Mind Matters For Criminal Threats, Supreme Court Rules

The U.S. Supreme Court has made it harder for prosecutors to convict people who make threats on social media, The Washington Post's Robert Barnes reports.

Petitioner Anthony Elonis was convicted of threatening to kill his estranged wife, law enforcement officials and a kindergarten class through Facebook posts written in a rap lyric-esque way; he was convicted under a federal law that makes it a crime to communicate '''any threat to injure the person of another.'"

But the high court, in a narrow opinion, said that Elonis' state of mind had to be considered, Barnes reports. The majority of the justices rejected the idea that a poster's intent is immaterial in judging whether he or she has stepped outside the bounds of the First Amendment and truly threatened others. Lower courts have found that what matters is only if a reasonable person would interpret the words as a threat.

The court's narrow ruling leaves it up to the lower courts to develop exactly what standard should be applied to determine if a poster has made a true threat.

Judge: Supreme Court Should Reject Subjective Intent for True Threats

The U.S. Supreme Court currently is considering the standard that should be applied to judge whether someone has stepped outside the bounds of the First Amendment and truly threatened others. Kevin Reed, a magistrate judge in Memphis, wrote in the Washington Post today that the justices should apply an objective standard, not a subjective standard, to true threats. If a subjective intent standard is applied, then prosecutors would have to prove that a defendant purposefully intended to threaten a victim, leaving them in the untenable position of trying to prove something that exists only in a defendant's mind, Reed says. "Abusers are keenly aware that victims never really know if their threats are serious or not," the judge concludes. "Ultimately, their objective is to keep victims guessing about whether they are in real danger. The Supreme Court should refuse to protect this manipulative behavior."

Is There a Right to Be Free From Blasphemy?

Does the right to free speech and free thought end where someone else's freedom of thought and freedom of speech start?

The issue is not an academic one with the killing of several Charlie Hebdo cartoonists and journalists in Paris and with a liberal Saudi Arabian blogger sentenced to 10 years imprisonment, 1,000 lashes, and a 1 million Saudi riyal fine (roughly $266,000) for insulting Islam, Foreign Policy's Michael Wahid Hanna reports. The Organization of the Islamic Conference has promoted the notion of defamation of religion as a cognizable legal concept, Hanna reports, but "international human rights law remains quite clear on the impermissibility of such discriminatory measures." However, laws against blasphemy, apostasy or defamation are not rare: "In 2011, the Pew Research Center’s Forum on Religion and Public Life found that nearly half the countries in the world have laws or policies that penalize blasphemy, apostasy, or defamation," Hanna further reports.

He argues that blasphemy laws are problematic because they chill free thought and inquiry and because authoriarian counties use such laws to suppress minority rights and punish nonconfirmity.

Supreme Court Case Tests Limits of Free Speech On Social Media

The Washington Post's Robert Barnes has a preview of arguments next week in the U.S. Supreme Court in the case of United States v. Elonis. Anthony Elonis made several threats on Facebook in rap-style lyrics toward his estranged wife, law enforcement, schoolchildren and co-workers, and he was convicted in federal court of making "true threats" toward most of those people. At issue in the Supreme Court is whether the test for proving someone guilty beyond a reasonable doubt of making a true threat should be whether they subjectively intended to make good on the threat or if a reasonable person would view the speech as a threat. At issue are " the unique qualities of social media," Barnes writes. "In this rapidly evolving realm of communication, only the occasional emoticon may signal whether a writer is engaging in satire or black humor, exercising poetic license, or delivering the kind of grim warnings that have presaged school shootings and other acts of mass violence."

Man Jailed For Posting Metal Music Lyrics

Clay Calvert, a communications professor at the University of Florida in Gainesville, writes in the Huffington Post about the case of a Kentucky man who was arrested for allegedly making terroristic threats and supposedly threatening to kill students when he posted lyrics by the metal band Exodus on his Facebook page. According to the band, the song with lyrics like '"student bodies lying dead in the halls, a blood splattered treatise of hate'" was inspired by the Virginia Tech shooter Seung-Hui Cho and was not meant to endorse mass shootings. As Calvert notes, the U.S. Supreme Court is going to hear a case this fall involving Anthony Elonis, who was sentenced to federal prison for his violent postings on Facebook. Elonis said they were therapeutic rap lyrics, but a jury found an objectively reasonable person could view them as threats.

U.S. Supreme Court Takes Up Free Speech Case Involving Online Threats

The U.S. Supreme Court has granted certiorari in a criminal case involving the free speech rights of a criminal defendant who used threatening language in the form of rap lyrics on Facebook, the Associated Press reports.  (I covered the trial of Anthony Elonis when I worked for the Legal Intelligencer, Pennsylvania's legal newspaper.)

Federal prosecutors successfully got the district judge to apply an objective standard for the jurors to decide if Elonis' posts were threatening, but Elonis' counsel argued that a subjective standard should have been applied, AP reports.

The U.S. Supreme Court has said that "true threats" are not protected speech, AP also reports.

US Supreme Court Allows Challenge to Ohio Law Banning False Election Speech

The U.S. Supreme Court has ruled that two conservative groups have standing to challenge an Ohio law that penalizes false statements made about political candidates, Reuters' Lawrence Hurley reports. The challenge can be pursued even though the Ohio Elections Commission has not said whether it would seek to penalize Susan B. Anthony List and another group. Here is coverage I did for the Supreme Court Review podcast of the oral arguments in the case:

Europe Siding with Right to Be Forgotten Over Free Speech

The Washington Post reports on the Court of Justice of the European Union's's decision this week that Internet users have the right to demand that Google-search links be deleted. Europeans have the right to be forgotten. Americans don't. "Those seeking a similar right in the United States have stumbled upon the expansive free-speech protections in the First Amendment. Blocking access to even the most damaging information — mug shots, videos of intimate acts, or Web pages created by cyber-stalkers — can be difficult and often impossible, experts say. Online news accounts of past personal problems are even harder to leave behind," the Post further reports.

The European court, however, drew a distinction between newspapers keeping such news reports alive but not search engine results, the Post reports.

Media Outlets Argue Ban on Drone Journalism Harms Free Speech

Media outlets have filed an amicus brief in support of a drone hobbyist facing a $10,000 fine for using a drone to make a promotional video, Gigaom reports. The media companies argue that the Federal Aviation Administration is violating the First Amendment by banning the use of unmanned aircraft for news photography.

Read the full brief here:

Supreme Court Justices Back Speech They Agree With, Study Shows

A study shows that U.S. Supreme Court justices back freedom of speech when the speakers share a similar political world view, the New York Times' Adam Liptak reports. For example, Justice Antonin Scalia voted to uphold the free speech rights of conservative speakers 65 percent of the time and liberal ones 21 percent.


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