Appeals Court Reinstates 'True Threat' Conviction Supreme Court Overturned, Still No Answers On First Amendment

from the welcome-back,-Anthony dept

A case about where free speech ends and "true threats" begin has made it all the way up to the Supreme Court and back and the question still remains unanswered.

Anthony Elonis has been engaged in a long legal battle in hopes of proving that a bunch of truly nasty things he posted on Facebook weren't threats, but rather "rap lyrics" posted solely for entertainment purposes.

Pennsylvania man Anthony Elonis has historically enjoyed saying outrageous things on Facebook, such as how he would like to murder his estranged wife; shoot up an elementary school; sneak into an amusement park he was fired from to wreak havoc; slit the throats of a female co-worker and a female FBI agent; and use explosives on the state police, the sheriff's department, and any SWAT team that might come to his house.

Elonis claimed these comments have been taken out of context -- the context being that his persona online is larger-than-life and those reading these posts were well aware of his tendency to post inflammatory, outrageous rants. For those posts, Elonis was also taken out of context -- at least as far as leading a normal day-to-day life is concerned. He was convicted and received a 44-month sentence.

The Supreme Court had a chance to examine the First Amendment issue at the center of it and hand down a ruling that might have cleared up some of the muddiness surrounding the dividing line between free speech and threats. Instead, it bypassed the First Amendment question and found procedural grounds for overturning Elonis' conviction.

In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding “took deep and early root in American soil” and Congress left it intact here: Under Section 875(c), “wrongdoing must be conscious to be criminal.”

The case was remanded to the Third Circuit Court of Appeals with the conviction overturned and the First Amendment question unanswered. That doesn't mean Elonis is a free man. The Appeals Court has reexamined the case in light of the Supreme Court's extremely narrow finding and ruled [PDF] that it had been right the whole time.

Anthony Elonis was convicted of violating 18 U.S.C. § 875(c), which prohibits transmitting in interstate commerce a communication containing a threat to injure the person of another. We affirmed his conviction on appeal, but the Supreme Court reversed our judgment. It held that the jury instruction regarding Elonis’s mental state was insufficient and therefore erroneous. On remand, we will once again affirm Elonis’s conviction because we hold the error was harmless.

The sole issue the Supreme Court directly addressed and found to be significant enough to overturn the conviction is nothing but a "harmless error" in the eyes of the Third Circuit. No definitive answers on free speech protections, and Anthony Elonis gets nothing more than a very long tour of the US court system culminating in an appeals court shrug.

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Filed Under: anthony elonis, first amendment, free speech, social media, supreme court


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  • icon
    PaulT (profile), 3 Nov 2016 @ 3:54am

    "Anthony Elonis was convicted of violating 18 U.S.C. § 875(c), which prohibits transmitting in interstate commerce a communication containing a threat to injure the person of another"

    That sounds like one of those laws that used to serve a very good specific purpose in a previous era, but is meaningless in an age where probably every online communication crosses state lines at some point.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2016 @ 4:55am

    I see a pattern here

    It seems the SCOTUS likes to find minor issues to rule on rather than address the larger issue. I guess if there are smaller issues at hand they should be addressed. After all, if we are going to be a land under the rule of law, the laws should be obeyed. But it seems they should address the larger issues while they are at it.

    reply to this | link to this | view in chronology ]

    • icon
      Great_Scott (profile), 3 Nov 2016 @ 8:57am

      Re: I see a pattern here

      This is how it should be, and to be expected.

      Congress makes laws, not the Supremes. Three branches and all that.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Nov 2016 @ 9:02am

        Re: Re: I see a pattern here

        You are wrong, that is not how it should be, they are for big issues more than little issues. They may not make law, but they can strike them down.

        SCOTUS should most certainly be reviewing high profile legal issues instead of piss-ant items.

        reply to this | link to this | view in chronology ]

      • icon
        orbitalinsertion (profile), 3 Nov 2016 @ 11:49am

        Re: Re: I see a pattern here

        They are certainly meant to interpret, or reinforce proper interpretation, of laws. Instead they find technicalities to address which somehow also let them pass on the question at hand. Procedural and other questions can be important, too, but merely in the name of efficiency, if not protecting rights and enforcing proper criminal sanctions, they should be handing down fully clarifying rulings. But too often they seem to seek one reason to dismiss and done. Here they ruled on the application of one law without wider guidance on whether or when that law and similar laws should be applied at all. That isn't "making law". (Never mind that all three branches can and do make law, as intended.)

        reply to this | link to this | view in chronology ]

    • identicon
      Nilt, 3 Nov 2016 @ 6:23pm

      Re: I see a pattern here

      When a court rules on a procedural issue rather than the merits of the overall case it may seem like abdicating their duty. It is not, however. In US law, due process is paramount. Without due process no case may withstand Constitutional scrutiny. Therefore, before any finding on the merits may be meaningfully conducted, the process itself must be absolutely appropriate and by the book.

      Welcome to the reality of the Rule of Law, basically.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 3 Nov 2016 @ 5:01am

    "We're not the ones facing years in jail, therefore it's harmless."

    It held that the jury instruction regarding Elonis’s mental state was insufficient and therefore erroneous. On remand, we will once again affirm Elonis’s conviction because we hold the error was harmless.

    If the 'error' was the difference between conviction and a finding of not-guilty, as could very well be the case, it's anything but 'harmless'. He was found guilty when the bar was set lower, would he still have been found guilty if it was raised? Given that's the kind of question that could mean the difference between lengthy jail time and free to go the attempt to brush it aside as no big deal is pretty disgusting on the part of the appeal court.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2016 @ 5:08am

    Hollywood Executives

    So when do the prosecution of the Hollywood Executives begin? I've seen plenty of movies containing threats to injure the person of another.

    Oh yeah, I forgot, the laws are not applied equally to all people. Got it.

    Too bad Anthony Elonis did not have a record contract, that's all he needed to avoid prosecution.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Nov 2016 @ 6:06am

      Re: Hollywood Executives

      SCOTUS was corrupted a long time ago! They are worthless. They make contradictory judgements and often pass the buck or refuse to hear cases that need to be decided.

      The presidential races have proven that people no longer seek respectability for the position, but instead political ideology.

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 3 Nov 2016 @ 5:13am

    It's good to see that the appeals court has their heads on straight, that they realize that just because there was some minor technicality that was problematic with the earlier ruling, it doesn't actually do anything to show that Mr. Elonis wasn't exactly what he appeared to be: a violent thug trying to intimidate people, then making up a completely transparent excuse when called on it.

    A violent thug who, by the way, doesn't even listen to rap according to his wife.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 3 Nov 2016 @ 5:26am

      Re:

      "A violent thug who, by the way, doesn't even listen to rap according to his wife."

      The same wife he was getting divorced from at the time? Surely an unimpeachable source...

      "a violent thug trying to intimidate people"

      It should also be noted that a great many hip-hop artists can (and have) get the same accusations levied against them based on their recordings. Unless there's evidence that he actually intended to follow through with his words, it's extremely troublesome that they should be treated as a jailable offence. Especially if conscious wrongdoing is now considered as being irrelevant to consider.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Nov 2016 @ 2:12pm

        Re: Re:

        Wait, wait, wait, are you telling me that people involved in a divorce will OFTEN TELL LIES?! I think I need to go have a lie down. Mind = BLOWN

        Until we can read minds, there's usually no way to determine a person's intent, so it really shouldn't be part of the law. Otherwise you get abominations such as Comey's letting Hillary off the hook. "Well, she sure did commit a crime. Lots of times. Lots of crimes. Involving mimes. But we're not sure she MEANT TO, so we're not going to do anything"

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 4 Nov 2016 @ 12:56am

          Re: Re: Re:

          It'll be nice to get to next week so that people are no longer shoehorning Clinton or Trump into discussions that have nothing to with them. OK, some will, but it won't be with the same depressingly stupid regularity that it's happening this week.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Nov 2016 @ 8:54am

          Re: Re: Re:

          Until we can read minds, there's usually no way to determine a person's intent, so it really shouldn't be part of the law.

          I see why you would say this, but this is a very dangerous request. "Strict liability" laws (which make no account of the defendant's intent) combined with the presumption that everyone knows every law (because who doesn't spend years memorizing the US Criminal Code?) can very easily snare people who did not know the law and would not have committed the crime had they known the action was illegal. Yes, the "big" laws are well enough known (no killing outside the confines of a "justifiable homicide", etc.), but there are so many obscure laws (e.g. rules about what can be imported from abroad, and under what conditions it must have been handled while abroad, and what obligations the importer bears for verifying that those conditions were met) that imposing strict liability everywhere is dangerous.

          I could see an argument for strict liability in those laws where it can be said with a straight face that the defendant knew, or reasonably should have known, that the conduct was not just illegal, but so far separated from legal conduct that no one could argue that it was almost consistent with the law. In any other case, I think we need to infer intent from the defendant's related actions and, when the inferred intent is innocuous, err on the side of non-prosecution. Even with an inferred intent standard, Mrs. Clinton's conduct likely could have been pursued on the basis that there was not a solitary technical violation (e.g. accidentally carrying a classified document out of a secure facility, but putting it back on discovering the mistake), but an ongoing pattern of handling the information in ways that, per the training she should have received, was clearly disallowed.

          reply to this | link to this | view in chronology ]

    • identicon
      Quiet Lurcker, 3 Nov 2016 @ 5:28am

      Re:

      Uh, no.

      The Supreme Court simply sidestepped the whole issue. Instead of answering the question that was put to them, they focused on the minutiae of the case - something else entirely.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Nov 2016 @ 5:57am

      Re:

      44 months in prison is an extremely harsh punishment when he has not actually done any tangible harm.

      He obviously has an issue with talking bollocks and making false threats (if you do not believe his rap story) but the best bet with someone like that is to ignore them rather than making him a criminal and sticking him in prison for 3.6 years.

      reply to this | link to this | view in chronology ]

    • icon
      art guerrilla (profile), 3 Nov 2016 @ 6:49am

      Re:

      @ Big Wheeler-
      proving for the hundredth time you are an unAmerican authoritarian who does NOT give a shit about the rule of law, only what widdle wheeler wants...
      ultimately, you are just a big scaredy cat crybaby...

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 3 Nov 2016 @ 9:54am

        Re: Re:

        It's a distinct possibility. You never can tell, on the Internet.

        Of course, it's also possible that I know, from direct, personal experience, that the kind of man who would make threats like that--particularly against his own family--is the kind of man who isn't likely to stop at threats.

        It's possible that I live in Eastern Pennsylvania and don't want a dangerous thug like this man walking free anywhere near me.

        It's possible that you're an idealistic kid (would I be correct in guessing you're under 30?) who's been fed a steady stream of nonsense like the sort of stuff Tim Cushing regularly writes all your life, who has lived a relatively comfortable life with no exposure to the sorts of conditions that are the reason that these laws exist, and therefore you are literally not capable of seeing the other side of the issue.

        You never can tell, on the Internet.

        reply to this | link to this | view in chronology ]

        • icon
          art guerrilla (profile), 3 Nov 2016 @ 11:22am

          Re: Re: Re:

          1. by their works, you shall know them... you have consistently proven yourself an abject authoritarian, no 'possible' about it...
          2. you constantly beat the drum of fear, Fear, FEAR ! ! ! that ANY POTENTIAL threat is treated as both real and inevitable, when most such fears are highly exaggerated if not simply made up... (you are SERIOUSLY and TRULY frightened you might run across this guy and he will take a cracker out ? seriously ? you need some long overdue fear calibration...)
          3. it is to larf: i been excoriating authoritarians online since before most all of techdirtia was born... i am 60sumpin... my heart still burns for, still yearns for justice...
          4. again, my main point is, you dont give a shit about the rule of law, you want what you wsnt, regardless of the law...

          reply to this | link to this | view in chronology ]

          • icon
            Mason Wheeler (profile), 3 Nov 2016 @ 12:00pm

            Re: Re: Re: Re:

            1. "Abject authoritarian..." What does that even mean? That I believe in the institutions of society that keep things running in a civilized, orderly fashion? Guilty as charged, I guess.

            2. What you call "fear" I call "wisdom," preferring to learn from the lessons of the past instead of constantly saying "this time will be different" and constantly being wrong.

            3. So you're a kid who never grew up. Gotcha.

            4. A court of law makes a ruling. I say the ruling of the court of law was right. You say that this is proof that I don't care about the rule of law. Did you order your dictionary from Bizarro Land or something?!?

            reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 4 Nov 2016 @ 1:01am

          Re: Re: Re:

          "Of course, it's also possible that I know, from direct, personal experience, that the kind of man who would make threats like that--particularly against his own family--is the kind of man who isn't likely to stop at threats."

          You know different people to me, then. I know a couple of people who have a sense of humour and online personas that would make such threats, but who would never consider doing any such thing in the real world. Sure, there's guys who are the opposite, but it's usually clear who is who. The guys who would carry out threats usually have a history of bar fights, domestic abuse, other violent activity that points to their threats being real rather than just venting anger through words on their Facebook profile. This is why we should be prosecuting people for their actions, not what they say.

          "You never can tell, on the Internet."

          Exactly why we're against jailing people purely for things they said on the Internet. Yet, you support this.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Nov 2016 @ 7:37am

      Re:

      Violent thug?

      Did I click a wrong link and accidentally end up on Breitbart?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2016 @ 5:50am

    'prohibits transmitting in interstate commerce a communication containing a threat'

    Wait - is that just another way of duplicating an existing law and appending 'with a computer' ?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Nov 2016 @ 8:19am

      Re: 'prohibits transmitting in interstate commerce a communication containing a threat'

      This looks more like another case of Congress noting that they had no Constitutional mandate for this type of thing, so they phrased it in a way that the Commerce Clause could be misread as permitting it. The Commerce Clause has proved quite popular as a way of saying that anything which does, or in some cases plausibly might, affect interstate commerce is necessarily within Congress's power to regulate. In this case, it is not clear that there was any commerce initiated or contemplated by the parties, but that was still used to justify the idea that the event must fall under Congressional authority.

      The alternative would be for states to (a) criminalize threats made by their citizens, regardless of who the speaker threatens or (b)(1) criminalize intrastate threats and (b)(2) establish reciprocity arrangements, such that the speaker's state will honor threat-related laws of the recipient's state (likely subject to limits such as "if recipient's state laws are no stricter than speaker's state laws, speaker's state will respect them"). Federal separation makes it legally difficult for the listener's state to unilaterally criminalize non-resident speech, but if the speaker's state cooperates, then it is generally permitted.

      reply to this | link to this | view in chronology ]

    • icon
      Great_Scott (profile), 3 Nov 2016 @ 9:00am

      Re: 'prohibits transmitting in interstate commerce a communication containing a threat'

      "True Threat" / "Hate Speech" laws are generally incompatible with the First Amendment, so you have to expect legal gyrations when they are drafted / decided on.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Nov 2016 @ 9:09am

      Re: 'prohibits transmitting in interstate commerce a communication containing a threat'

      Wait, where did judges find commerce there? Was he engaged in commerce while threatening? Really?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2016 @ 6:11am

    The supreme Court, near its beginning, decided that it needed to do as little as possible, which is good. It will not interpret the Constitution or rule on the Constitutional issues unless it has to, meaning it can not resolve the case on other issues. This is very good.

    reply to this | link to this | view in chronology ]

    • identicon
      Quiet Lurcker, 3 Nov 2016 @ 7:51am

      Re:

      I invite your attention to Roe v. Wade. I invite your attention to the supreme court's decision upholding obamacare. I invite your attention to Brown v. Board of Education. I invite your attention Marbury v. Madison.

      In all the above cases, activist decisions completely unsupported by the constitution and in a couple of instances not even supported by the facts of the case or simple common sense.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2016 @ 6:30am

    Harmless Error

    The sole issue the Supreme Court directly addressed and found to be significant enough to overturn the conviction is nothing but a "harmless error" in the eyes of the Third Circuit.

    Translation:

    We are above law here - STFU and go to jail

    reply to this | link to this | view in chronology ]

  • identicon
    AnonCow, 3 Nov 2016 @ 6:55am

    That seems more like a FUCK YOU to the Supreme Court than an actual legal decision.

    reply to this | link to this | view in chronology ]


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