Thread: Are Online Death Threats Protected Free Speech

It's important to remember that when it comes to Free Speech issues, there are limitations to the First Amendment. The first limitation dates back to 1919 when the Court held that shouting fire in a crowded theater is not protected speech pursuant to the First Amendment. See Schenck v. United States , 249 U.S. 47 1919. In Schenck , Justice Oliver Wendell Holmes, Jr. wrote the unanimous opinion of the Court. They held that the defendants handing out anti-draft leaflets could be arrested for criminally interfering with the draft process. The Court also held that whenever the speech creates a clear and present danger to the United States Draft Board in that case, it is not protected under the First Amendment. It's easy to see how this sort of thinking on the part of the Court could be applied to the case at hand. Mr. Elonis said some very disturbing things, some very hateful things. If he had said them in person, he'd be charged in most jurisdictions under a crime known as terroristic threat. Still, just as the fact that those opposed to the draft could be arrested or charged with a criminal offense for passing out leaflets, I grow very concerned with any attempts to hamper free speech. It's a delicate balancing act. I think that he should have been brought up on state terroristic threat charges. State offenses have more flexible sentencing procedures...therefore it'd be easier to get him treatment in a facility than under the statutory sentencing guidelines at the Federal level. The Federal law used here mentions the threat of kidnapping or causing bodily harminjury being transmitted in Interstate or Foreign Commerce. In other words, as per the statute 18 U.S.C. 875 c , any form of writing or speaking that mentions kidnapping any person or making a threat to injure someone can be charged by this statute. For instance, if I wrote My father is being a bastard, I could kill him...or at least break his leg, and had said it in jest, according to the reasoning used by the appellate court, I could be charged under this statute. Granted, it may seem as if I'm stretching this, but as long as a reasonable person would foresee that my intentional statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm...it is a true threat. United States v. Kosma. Therefore, the so-called objective standard of a reasonable person is used to measure this...not my subjective intent. That raises the question of the legal fiction of a reasonable person. It doesn't go by the actual intent of the communicator. Rather it is applied to this legal fiction which is a composite of an average member of society under like circumstances, who might view it as reasonable...or not. That's a tricky argument to make, and it's dangerous when applied to Constitutional rights. Also, just because speech is repugnant, or done for the purposes of causing fear, doesn't mean it shouldn't be afforded constitutional protections, per se. After all, in National Socialist Party of America v. Village of Skokie, IL. , 432, U.S. 43 1977, The Supreme Court held that the town of Skokie Illinois could not prohibit the Neo Nazi Party from marching through their town, without first providing strict procedural safeguards, including immediate appellate review, and absent such review a stay of the town's blocking the marchers must be granted. So, why did the town attempt to ban the rally? Well, Skokie Illinois was a predominantly Jewish community. Of this community, one in six was a Holocaust survivor. The Neo-Nazis sought to march through their community in response to the City of Chicago banning them from marching in their city, without providing a public-safety bond which they did get, and then the city banned all political demonstrations in the park that the Neo-Nazis wanted to use. Consequently, the Neo-Nazis chose the Town of Skokie to retaliate against Chicago, but also to stir fear in the hearts of the local residents. They would parade through the town, in full Nazi regalia, carrying swastikas, chanting the usual anti-Semitic death threats. But, it was still considered free speech. From this, we can see how difficult it will be to establish a true threat through the Internet. I think that a procedural process would need to be in place to evaluate the likelihood of the threat, versus deference to the Constitution. Don't be surprised if the Supreme Court overrules the lower Court, remanding the case to them to uphold the conviction on different grounds. The Supreme Court will only decide a case on its Constitutional merits as a last resort. This is a long standing tradition, and has resulted in many potentially sticky First Amendment issues being punted back to the lower court on procedural grounds to make it not so violative of the Constitution...without saying that in so many words. If they do rule on the Constitutional Issue, I expect them to create a more definitive test, focusing on Online material in particular. Then, like with any other Supreme Court case...expect the particulars to be fought over again and again, until it's refined. Either way, this is the sort of issue that shouldn't be taken lightly...which, of course, means the Supremes will most likely take it lightly.