Elonis v. United States: The First Supreme Court Case About Social Media and the Freedom of Speech

By Jenna Spoont

The Supreme Court heard a case on Dec. 1 about a man who was convicted in 2010 on four counts for writing threatening posts on his Facebook page. The posts targeted his wife, local law enforcement, an elementary school, and a Federal Bureau of Investigation agent. The case involves the First Amendment’s guarantee of the freedom of speech.

This is the first time that the Supreme Court addressed online speech and this decision will “determine how far First Amendment protections extend on social media sites like Facebook.”[i]

Mr. Elonis, 31, claims that his Facebook posts were rap lyrics that served as an outlet to let off steam after a difficult time in his life. At the time of his posts, Mr. Elonis was fired from his job and Mr. Elonis’ wife left him after seven years of marriage, taking their two young children with her. Mr. Elonis was sentenced to 44 months in prison and three years of probation.[ii]

One of Mr. Elonis’ posts that targeted his wife said, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”[iii]

Now, the Supreme Court must define “a legal standard of proof to judge when a rant goes from being offensive to being threatening.”[iv] In Virginia v. Black (2003), Virginia made it unlawful to burn a cross with the intent to threaten. The Court upheld the Virginia law but never decided whether or not the speaker had to have the intent to carry out a true threat in order to be convicted of making a true threat.[v]

Thus, the issue in the Elonis case is the following: Does a speaker have to have the intent to carry out a true threat in order to be convicted of making a true threat? Or does the recipient only have to be afraid in order for the speaker to be convicted? 

Facebook has become a cultural phenomenon specific to Mr. Elonis’ generation. Facebook posts contain hyperbole, rants, and trash talk. But, to what level of provocative speech can the First Amendment protect a speaker?

Let us look at a precedent case. Watts v. United States (1969) was a case about a 19-year-old man who said at a political rally that he would kill President Lyndon Johnson if he were drafted into the Armed Forces. The Court overturned Mr. Watts’ “true threat” conviction and decided that Mr. Watts’ words amounted to political hyperbole. In reaching this decision, the Court relied on the context of Mr. Watts’ speech: the statement was made during a political debate, it was expressly made conditional upon an event, and both Mr. Watts and the crowd laughed after the statement was made.[vi]

I see two ways that the Court could use Watts as a precedent. In favor of Mr. Elonis, the Court could find that Mr. Elonis’ Facebook posts were a form of emotional hyperbole. On the United States’ side, the Court could decide that Mr. Elonis’ speech was neither “big talk” nor meant for the political arena.

I attended the oral argument at the Supreme Court for Elonis v. United States to try and figure out what the justices are going to decide.

Justice Ruth Bader Ginsburg asked, “How does one prove what’s in somebody else’s mind?”[vii] Justice Ginsburg seemed to agree with the reasonable person standard, in which a reasonable person decides whether or not the words would put the recipient of the speech in fear. However, John Elwood, Mr. Elonis’ attorney, argued in the petition for certiorari that Mr. Elonis’ posts were “therapeutic efforts to address traumatic events rather than intentional threats.”[viii]

Chief Justice Roberts did not seem to agree with Mr. Elwood’s argument. Chief Justice Roberts said, “Yes, of course, it shows that [Mr. Elonis] was going to do something dangerous. It’s a good thing that he had this outlet of the Internet so he didn’t have to do it.”[ix]

Michael Dreeben, deputy solicitor general for the Department of Justice, represented the United States. Mr. Dreeben said that “people who are speakers of the English language and who know that the words—what the meaning of the words is that they speak are accountable for the consequences of those words.”[x]

Justice Elena Kagan proposed to Mr. Dreeben that there should be some kind of “buffer zone to ensure that even stuff that is wrongful maybe is permitted because we don’t want to chill innocent behavior.”[xi] Mr. Dreeben responded, “There are plenty of ways to express yourself without doing it in a way that will lead people to think this guy is about to hurt somebody.”[xii]

The organizations that filed amicus briefs in support of Mr. Elonis include: the American Civil Liberties Union (ACLU), Center for Individual Rights, Marion B. Brechner First Amendment Project, Reporters Committee for Freedom of the Press, Rutherford Institute, Student Press Law Center, and Thomas Jefferson Center for the Protection of Expression.

The ACLU explained in their brief that the “use of an objective test for online communication would inevitably chill constitutionally protected speech, as speakers would bear the burden of accurately anticipating the potential reaction of unfamiliar listeners or readers.”[xiii]

The organizations that filed amicus briefs in support of the United States include: the Anti-Defamation League, Criminal Justice Legal Foundation, Domestic Violence Legal Empowerment and Appeals Project, National Center for Victims of Crime, and National Network of Domestic Violence.

Justice Samuel Alito seemed to agree with the amici that deciding in favor of Mr. Elonis would pose “a very grave threat to domestic violence.”[xiv] Justice Alito added, “this sounds like a roadmap for threatening a spouse and getting away with it.”[xv]

The Court is expected to decide this case by the summer.[xvi]

---

[i] Schiffbauer, Anna. “Supreme Court hears social media threats case.” Student Press Law Center. December 1, 2014. http://www.splc.org/article/2014/12/supreme-court-hears-social-media-threats-case

[ii] United States v. Elonis, United States Court of Appeals for the Third Circuit. June 14, 2013. http://www2.ca3.uscourts.gov/opinarch/123798p.pdf

[iii] Ibid.

[iv] Denniston, Lyle. “Argument analysis: Taking ownership of an Internet rant.” SCOTUSblog. December 1, 2014. http://www.scotusblog.com/2014/12/argument-analysis-taking-ownership-of-an-internet-rant/

[v] Lockhard, William B., Yale Kamisar, and Jesse H. Choper. Constitutional Law: Cases, Comments, Questions. 11th ed. St Paul, MN: West Pub., 1980. 913. Print.

[vi] Watts v. United States 394 U.S. 705 (1969). https://supreme.justia.com/cases/federal/us/394/705/case.html

[vii] Elonis v. United States Oral Argument. December 1, 2014. 4.

[viii] Cert petition for Elonis, 22.

[ix] Elonis v. United States Oral Argument, 5.

[x] Ibid., 29.

[xi] Ibid., 46.

[xii] Ibid., 47.

[xiii] Amicus Curiae Brief of the American Civil Liberties Union, the Abrams Institute for Freedom Expression, the CATO Institute, the Center for Democracy & Technology, and the National Coalition Against Censorship, in Support of Petitioner. August 22, 2014. 27.

[xiv] Denniston and Elonis v. United States Oral Argument, 60.

[xv] Denniston and Elonis v. United States Oral Argument, 59.

[xvi] Totenberg, Nina. “Is A Threat Posted On Facebook Really A Threat?” December 1, 2014. http://www.npr.org/2014/12/01/366534452/is-a-threat-posted-on-facebook-really-a-threat

Challenge to Legality of EPA Regulations on Mercury Emissions

By Caitlin Barbas

Environmental regulations have consistently emerged as a point of controversy in the United States. Following growing criticism of the Environmental Protection Agency's (EPA) emissions regulations for mercury and other toxic pollutants, the Supreme Court announced it will review the ability of the EPA to establish such regulations. The case was narrowed down to a singular question: “whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electrical utilities.”[1]

The EPA's new emissions regulations have turned into a political case, after their adoption in 2012 was seen as a victory for the Obama administration. [2] A challenge to these regulations could potentially hamper the White House's ability to act in environmental cases. Furthermore, this case could be a precursor to future Supreme Court intervention in EPA oversight cases, echoing the message of Justice Scalia, following a June 2012 case, that "the court remained prepared to impose limits on the agency's regulatory authority.”[3]

The basis of the case is the interpretation of the Clean Air Act.[4] The Clean Air Act states, "Emissions standards... shall require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section... taking into consideration the cost of achieving such emission reduction."[5] Twenty-one states and multiple energy industry companies have filed complaints against the EPA, arguing the agency neglected to consider the cost of regulations in the early stages of the regulatory process, a cost which could be over $9 billion.[6]

In April 2012, the issue was brought before the U.S. Court of Appeals for the District of Columbia in the case, White Stallion Energy Center, LLC v. Environmental Protection Agency; American Academy of Pediatrics. ​In a 2-1 decision, the right of the EPA to apply the disputed regulations was upheld. Judge Judith W. Rogers, writing for the majority, stated, "For the EPA to focus its 'appropriate and necessary' determination on factors relating to public health hazards, and not industry's objections that emission controls are costly, properly puts the horse before the cart".[7]

In the upcoming hearing, the Supreme Court has agreed to hear three separate cases against the regulations during a one session hearing in March 2015. These cases are Michigan v. Environmental Protection Agency, No. 14-46, Utility Air Regulator Group v. Environmental Protection Agency, No. 14-47; and National Mining Association v. Environmental Protection Agency, No. 14-49. 

In order to justify the regulations, the Environmental Protection Agency will need to demonstrate that it appropriately considered the costs of the regulations on the affected utility companies, and, therefore, that the benefits of the regulations outweigh the costs. While not impossible, this task will prove difficult for the EPA. The agency estimates benefits to range from $35 billion to $90 billion (2007)[8].  These estimates, however, contain non-quantifiable components, such as prevention of premature deaths and prevention of lowered IQ rates.[9] Whereas the plaintiffs are able to provide a clear citations to where their losses emerge, the EPA will rely on fewer tangible examples.  

---

[1] Liptak, Adam, and Coral Davenport. "Supreme Court to Hear Challenge to Rules on Mercury From Power Plants." New York Times. http://www.nytimes.com/2014/11/26/us/politics/supreme-court-to-hear-case-on-costs-of-clean-air-act.html?_r=2.

[2] Ibid.

[3] Liptak, Adam. "Supreme Court to Hear Case on Costs of Clean Air Act." Boston Globe via New York Times. http://www.bostonglobe.com/news/nation/2014/11/25/supreme-court-hear-case-costs-clean-air-act/BsaBZkkd8KJKVGqH3cTQAL/story.html.

[4] Liptak, Adam, and Coral Davenport. "Supreme Court to Hear Challenge to Rules on Mercury From Power Plants." New York Times.

[5]   Clean Air Act, Section 112(d)1, 42 U.S. Code 7412(d)(1)

[6]   Barnes, Robert. "Supreme Court to hear challenge to EPA’s power-plant emissions rule." The Washington Post. http://www.washingtonpost.com/politics/courts_law/supreme-court-to-hear-challenge-to-epa-power-plant-mercury-pollution-rule/2014/11/25/3086fad8-74d9-11e4-a755-e32227229e7b_story.html.

[7] White Stallion Energy Center, LLC v. Environmental Protection Agency; American Academy of Pediatrics, 44 ELR 20088, No. 12-1100, (D.C. Cir., 04/15/2014)

[8] Barnes, Robert. "Supreme Court to hear challenge to EPA’s power-plant emissions rule." The Washington Post.

[9] Ibid.

Interview with Attorney Deborah Golden

This interview is conducted with Attorney Deborah Golden, Director of the DC Prisoners’ Project, a part of the Washington Lawyer’s Committee.  The project’s objective is to act as an advocate for prisoners to help to maintain their dignity, while ensuring that they receive humane treatment while incarcerated.  Mrs. Golden received her J.D. from the University of Michigan Law School.  She has been working with the project since 2006.  She is also currently an adjunct professor at Georgetown Law School and was recently named one the nation’s best LGBT Lawyers Under the Age of 40 by the National LGBT Bar Association.

Michele: How did you first get interested in the field of law?

Deborah Golden: Generally, I think the field of law was something I was always interested in.  It was just something I was pretty sure I wanted to do from pretty early on in my undergraduate career, maybe even in high school.

Michele: How did you get involved with your current field, working as the Director of the DC Prisoners’ Project?

Deborah Golden: My first real introduction to prisoners’ rights was in my third year of law school, when I was a teaching assistant for an undergraduate class about women in prisons.  I originally took on that class for the benefits from Michigan University, which was a well paying part-time job.  That was my first introduction to the field.  Then, when I was applying to jobs after my fellowship, which was two years after law school, I was offered a position as the Director of the Women in Prison Project in the DC Prisoners’ Legal Services Project.

Michele: Could you provide an overview of the work your office is involved with?

Deborah Golden: The DC Prisoners’ Project, at the Washington Lawyer’s Committee, represents people who are incarcerated or otherwise have their freedom abridged under the authority of DC.  That means that we represent people who in jail, prison, parole, or probation, and in a variety of civil rights needs. 

Michele: What do you find to be the most interesting part of your work as the Director of the DC Prisoners’ Project?

Deborah Golden: What I like most about the work is the variety of what I do.  I get to look at really interesting, deep thinking questions and research.  I look at what it means to have an 8^th Amendment, and what does that say about us as a country and a society.  I also get to do individual advocacy on belief of real people and be involved with policy work.  And all of these interesting parts of my job go towards something I really believe in, the inherent dignity of each person.

Michele:  What would you say is the most challenging aspect of your work?

Deborah Golden: There’s always more need than we have resources for and often some of the most heart-tugging requests are things that the law can not answer or do anything for.  So we have to say no a lot, which is hard.

Michele: What would you say is one of the most interesting cases you have worked on?

Deborah Golden: Just now, I signed a memorandum of understanding that will move towards settlement.  It’s on behalf of women in the Virginia Department of Corrections, who are held at Owens Prison, which was supposedly designated for the sickest women in prison, and the healthcare was really quite abysmal.  After probably four or five years of working on that case, we are going to be able to make large systemic reforms to the way that healthcare is delivered and how the women are treated. 

Michele: So you were saying that there is a serious problem with the healthcare, why do you think the treatment is so inadequate?

Deborah Golden: It’s a lack of funding; it’s lack of awareness of the public health implications.  We like to think as a country that people go to prison and never come back, but 95% of the people who go to prison come back.  I think it has a lot to do with lack of transparency of the system, a lot of people really don’t know what happens in prison, and that’s very hard to find out.

Michele: What would say is one of the largest problems with today’s prison system?

Deborah Golden: It’s hard to say that there is one.  I think the biggest problem is that it exists in the way that it does today.  It’s huge.  It’s our largest social institution in this country.  It incarcerates 25% of the world’s prisoners, but the United States has about 5% of the world’s population.  It’s just mammoth and in a lot of ways unmanageable.  An analogy that an old boss of mine used to use that made a lot of sense to me relates to the idea that prison is so crowded that any little thing that goes wrong has huge consequences.  If you think about it, if someone gave you five blocks that you had to fit in a huge box you could just throw them in any which way and just carry the box.  But, if it were totally full you would have to make sure that each block was put in perfectly, and if any one were slightly out of place, you would not be able to carry the box because it would overflow.  That’s basically what it’s like in prison.  It’s so crowded and we’ve stretched our system beyond what we could ever hope to support.  Because of that we destroy a lot of lives in the process.   

Michele: What do you do when people do try to reenter society? Do you get involved with those people who were formerly incarcerated?

Deborah Golden: We do.  We represent people in cases involving unfair and illegal overreach by the parole commission.  We work with the other projects here collaboratively, including the employment and housing project. 

Michele: Although unrelated to your work on prisons, what advice would you give to students considering law school?

Deborah Golden: Don’t worry too much about taking classes to prepare for law school.  Take classes that you think are interesting and teach you how to think and give you a window to something you’ve never thought about.   

I would like to give a special thanks to Deborah Golden for taking the time for this interview.

If you would like to learn more about the work of the DC Prisoners’ Project, follow this link to the website: http://www.washlaw.org/index.php/projects/dc-prisoners-rights

Implications of Ferguson’s Grand Jury Proceedings

By Nina Jones

On Tuesday, November 25, a grand jury decided not to indict Darren Wilson, the white police officer who fatally shot Michael Brown, a black, unarmed teenager in Ferguson, Missouri on August 9 of this year.  In the months between the shooting and the decision, there has been non-stop action: protests and marches have been endless, voter registration in Ferguson has surged, and politicians on every level have offered their opinion on the issue.[1]

In anticipation of the ruling on Tuesday, President Barack Obama urged the people of Ferguson not to resort to violent acts, telling protesters, “I have no sympathy at all for destroying your own communities,” while also praising those in other parts of the country for protesting peacefully. Attorney General Eric Holder expressed his disappointment regarding the unrest and made it clear that acts of violence would not be condoned. Missouri Governor Jay Nixon called up hundreds of National Guard troops in preparation for any violence as a result of the grand jury’s decision.[2]

The grand jury’s ruling has since reinvigorated conversations not only about race relations in the United States, but also about contributions by U.S. leaders to the huge problem of how we as a country deal with our past and present violations of people’s civil rights, as well as the training police officers receive to deal with people, particularly young men, of color. Amid all of these important and necessary conversations, however, lies another question: how was the grand jury in Ferguson different than other grand juries?

In 1992, in the U.S. Supreme Court case of United States v. Williams, Justice Antonin Scalia explained that the role of a grand jury is not to “enquire…upon what foundation [the charge may be] denied,” but only to examine “upon what foundation [the charge] is made”: “neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.”[3]

The difference between that explanation by Justice Scalia and what happened in Ferguson is stark. Officer Wilson was allowed to testify for hours, and Prosecutor Bob McCulloch presented the grand jury with every piece of exculpatory evidence that was available at the time.[4] McCulloch gave a press conference on Tuesday, in which he included an apology to the Brown family and a relatively scathing jab at the media before explaining that the grand jury decided not to indict Wilson because of the evidence presented during the hearing.[5] According to precedent and Justice Scalia’s explanation of what a grand jury is and is not, however, McCulloch was not required to present such evidence and was certainly not required to allow Wilson to testify.

Many legal scholars and experts have criticized McCulloch’s approach and have tried to offer explanations.[6] Some posit that his misuse of the grand jury as a trial jury and his presentation of Wilson’s case in a way that would ensure that he would not be indicted were tactics employed by McCulloh solely to get the verdict he wanted. Others argue that he simply wanted to appease the media by including all information available.[7] Andrew Leipold, director of the Program in Criminal Law and Procedure at the University of Illinois College of Law, says that McCulloch’s fear of being one-sided in his treatment of the process was what most heavily influenced his approach: “This is an example of the prosecutor saying…no matter what the outcome is, if we don’t present witness X or present the forensic reports, people are just going to say this is an inadequate investigation and either we’re railroading the police officer if we indict or we’re covering up if we don’t.”[8]

There are still others who believe strongly that the outcome would have been different had Wilson not been a police officer.[9] Aside from the obvious fact that his job as police officer makes the shooting more complex, the public’s view of people in uniform is such that it is much harder for a jury to definitively convict a young police officer than just a random person on the street. Self-defense is much easier to argue when your job is by nature very dangerous.[10]

However, the issue at hand is not why McCulloch chose to allow Wilson to testify or why he presented so much evidence to the grand jury. The issue is that this grand jury was given more and different information than other grand juries in the United States. Whether that fact is right or wrong in the circumstances of the case is up for debate and the decision will certainly not be the final word in such a complex, important, and symbolic case as this.

Since the ruling, feelings of anger, desperation, and frustration have only increased for the people of Ferguson and Governor Nixon has already rejected appeals to have another ruling. The issue of the grand jury will surely become a more prominent one as weeks go by, and will rightly contribute to the conversation of race relations in America as the story of Ferguson continues to unfold.

---

[1] Juan Williams, “Ferguson grand jury decision: Brown’s death should be call to action not violence,” Fox News, November 25, 2014, Web.

[2] Dashiell Bennett and Russell Berman, “No Indictment,” The Atlantic, November 25, 2014, Web.

[3] United States v. Williams, 504 U.S. 36, 52 (1992).

[4] Kira Lerner and Alice Ollstein, “Experts Blast Ferguson Prosecutor’s Press Conference, Legal Strategy,” Think Progress, November 25, 2014, Web.

[5] Emily Badger, “The empty logic of the Ferguson prosecutor’s meandering press conference,” The Washington Post, November 25, 2014, Web.

[6] Richard A. Oppel, Jr. and Michael Schwirtz, “Experts Weigh Officer’s Decisions Leading to Fatal Shooting of Michael Brown,” The New York Times, November 26, 2014, Web.

[7] Kira Lerner and Alice Ollstein, “Experts Blast Ferguson Prosecutor’s Press Conference, Legal Strategy,” Think Progress, November 25, 2014, Web.

[8] Ibid.

[9] Krishnadev Calamur and Eyder Peralta, “Ferguson Documents: How the Grand Jury Reached a Decision,” NPR: The Two-Way, November 25, 2014, Web; Emanuella Grinberg, “Ferguson decision: What witnesses told the grand jury,” CNNJustice, November 26, 2014, Web.

[10] Ibid.