Domestic Violence, Bullying and Free Speech

The angry street poetry set to music seems to have been a big part of the hip-hop genre, even beyond the harsh words that define the super-blatant gangsta-rap sub-genre. With explosions of the reporting of domestic violence, the engagement of society at large in the cyber-bullying tumor that has even moved some particularly vulnerable tweens and teens to suicide and the limitations being imposed by legislatures everywhere against revenge porn, you might surmise that our entire legal system is shifting heavily towards protecting the victims of such nefarious words and cyber postings at the expense of the perpetrators.

Threats are taken seriously these days, and legislatures are lining up, having hearings from irate parents, stalking victims, teens and others who have been threatened with physical harm in cyber space. But we are also a country that seems to cherish Bill of Rights guarantees, from owning guns (with some pretty extreme views on exactly how guns can be allowed into society) to free speech. Inevitably, this new trend to protect potential victims from such threats has run up against that free speech wall. And while it would be interesting if this were determined at a lower court level, this simmering maelstrom has just faced the United States Supreme Court.

In the June 1^st opinion in Elonis vs. United States, a decision in which seven justices on both side of the political spectrum joined, with two justices dissenting (one actually concurring in part), the court reversed a criminal conviction based on a Facebook posting by a disgruntled ex-husband making death threats against his ex-wife. Elonis chose to vent his rage in the form of self-styled rap lyrics with graphically violent threats. The trial court used the standard of whether a reasonable person would interpret what was communicated as a “true threat.”

The high court drilled down on the notion that criminal law generally requires knowledgeable wrongdoing, and that the standards applied by the court did not take the perpetrator’s mental state, his intention, into consideration. Was this just anger vented into an artistic expression with no real intent to harm, kill or injure, or was this a real and dangerous threat? The court refused to make an inquiry on what would have happened had the statute allowed prosecution for willful and reckless use of language.

Writing the majority opinion, “Chief Justice John G. Roberts Jr., noting that Anthony Douglas Elonis had said he intended his postings to be fictitious and even therapeutic, said a defendant’s state of mind had to be considered… But the opinion offered little in the way of specifics about what must be proved for a conviction, and Justices Clarence Thomas and Samuel A. Alito Jr. criticized the opinion as more confusing than enlightening… ‘This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty,’ Thomas wrote in dissent.” Washington Post, June 1^st.

The justices didn’t even get to apply that First Amendment argument, addressing that criminal mind threshold as the only element they really needed to consider to reverse the lower courts. “For the justices, it was sufficient for now, Roberts wrote, to correct a misinterpretation by most lower courts that the poster’s intent is immaterial and what matters only is how the message is received… Roberts defended the majority’s go-slow approach. ‘Such prudence is nothing new,’ he wrote.

Civil libertarians praised the limited ruling… Steven R. Shapiro, legal director of the American Civil Liberties Union, said the law ‘for centuries required the government to prove criminal intent before putting someone in jail. That principle is especially important when a prosecution is based on a defendant’s words.’” The Post. A free society carries risks inherent in that freedom. We see the issues in the NSA’s spying activities, and we are witnessing the limits being imposed on legislatures to with those cyber-threats.

            I’m Peter Dekom, and balancing conflicting fundamental interests is not only complex but also changes over time, but how far can we go in any direction?