Monday, December 01, 2014

I go to oral arguments at Supreme Court on the Elonis "Facebook threat" case


Today, I heard part of the oral arguments at the Elonis v. U.S. case on the “Facebook threat” problem (Nov. 24). 

I got there around 10 AM, and the line was only about 50 people.  However, the first case did not empty the hall, and only about ten people got in to hear the whole session.  I got to hear about 5 minutes starting around 11:25 AM. 
  

On two previous cases, I have visited the Supreme Court from the three-minute line.  On Wednesday March 19, 1997, after standing in wet snow for an hour, I heard some arguments regarding the Communications Decency Act, the censorship portion of which was overturned (the Section 230 portion held, which is a good thing.) In actual fact, I got to hear about 15 minutes of the session, and the part I heard was relatively negative from the free speech portion. 
  

On Tuesday March 2, 2004 I heard some oral arguments about the second COPA case.  Again, I got to hear about 15 minutes.  Today, I heard less time than on previous occasions.
The portion I heard was ambiguous and inconclusive. 
  

Jeffrey Toobin explained the issue on CNN Monday afternoon. Toobin said that the DOJ believes that the standard should be, what a reasonable person would interpret as a threat.  However, defense lawyers argue that the intent of the speaker should be considered.  Toobin seemed to feel that the Court was likely to accept the DOJ standard, partly because the consequences of even vague threats can be so grave, as we know from the school rampage cases.
  
ABC News has a summary of how the hearings went from AP here. The Argument Transcript has been put up early Monday afternoon, here
  

Justice Kagan seems to ask important questions, particularly about “recklessness”.  Mr. John P. Elwood (representing Elonis) mentioned the “turn or burn” phrase used against abortion providers.  Michael R, Drebeen argued for DOJ. Drebeen did discuss privacy settings and their specific case in speech cases.  Drebeen seems to hint (on p. 34) that speakers should limit the audience of some provocative speech because they know some people will tend to react out of context.  This is related to the “implicit content” problem I have discussed here before. Drebeen also compared laws concerning threats to laws concerning defmation, and “mens rea” (“the intending mind”) got mentioned.  Elwood also discussed a Texas case, Justin Carter, was in jail for four months after a woman in Canada reported a sarcastic threat about a video game “out of context” (p. 9).  There was mention of the Texas “subjective intent” requirement and a prediction that Carte is like to be acquitted (but look at what he had to go through  see “The Dallas Observer” – “The Facebook Comment that Ruined a Life”, by Caig Malisow, here).



One way to increase the benefit of the 3-minute line is to go to lunch in the cafeteria afterward and talk to others who may have heard more.  One attorney said he was impressed when Justice Roberts used the example of Eminen with his rap lyrics (including some that are anti-gay).  However, the attorney felt that the justices should have asked more about the fact that a public social media posting is made to the whole world, and is likely searchable, rather than directed at one person.  I did make a brief summary of my own mishap as a substitute teacher in 2005 (see Nov. 24) and the attorney could indeed see the connection. Was I “reckless”? My situation is different in that it didn’t suggest a threat but could convey a temptation, without a clear “purpose” other than “gratuitous speech” which is what brings back “implicit content”.  

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