Facebook case a menace to free speech
Criminalizing social media posts is a European import we don't need.
Facebook case a menace to free speech Criminalizing social media posts is a European import we don't need. Check out this story on thetowntalk.com: http://www.thetowntalk.com/story/opinion/2015/06/03/jonathan-turley-facebook-case-menace-free-speech/28375047/
Louisiana Published 11:07 p.m. CT June 2, 2015 | Updated 11:07 p.m. CT June 2, 2015
The Supreme Court(Photo: Karen Bleier, AFP/Getty Images, 2012)
Winston Churchill once said "nothing in life is so exhilarating as to be shot at without result." The free speech community experienced precisely that sensation this week after the Supreme Court rejected a sweeping move by the Obama administration to criminalize some speech on the Internet and social media. Even as we dodge the bullet, many Americans will not realize how close this country came to following Europe in the criminalization of speech.
The case, Elonis v. United States, could not have had a less redeeming character at its center. Anthony Elonis, 31, was convicted for Facebook postings deemed threats of violence against his former wife and former colleagues. After his wife left him and he was fired from his job, Elonis began to post rap lyrics containing graphic violent language and imagery.
There is no question that Elonis has the mentality of an angry toddler. However, the Obama administration charged him with five counts of transmitting in interstate commerce "any communication containing any threat ... to injure the person of another." The administration argued (and the trial court and appellate courts agreed) prosecutors need not show Elonis intended these rap songs as threats. Rather, it argued the government could criminalize any communications a reasonable person deemed a threat.
That effectively flipped the standard from looking at the intent of the individual to how the statement is perceived under a "reasonable person" standard. While the Supreme Court did not conclusively state the intent requirement requires an intent to threaten, it rejected the lower standard and remanded for the lower courts to consider whether "recklessness" could be used in such cases.
There was always more to this case than the dubious character of Anthony Elonis. Throughout the West, there has been an expanding rollback on free speech in the wake of violent protests by Islamic groups. While Western leaders, including President Obama, talked a good game of supporting free speech after murderous riots over the publication of cartoons or films depicting the prophet Mohammed, they have quietly ramped up prosecutions for those who exercise free speech.
The Elonis case was a critical move to open the door to the type of criminalization of speech that is now common in Canada and Europe. Putting aside the actual prosecutions, it would have created a clearly intended "chilling effect" for everyone posting comments that they could be arrested if "reasonable people" would view their comments as threats.
The justices found that the administration was seeking a fundamental change in the standard required to convict someone of a crime. The court cited the long-standing principle that "wrongdoing must be conscious to be criminal." Though there are a few exceptions, the court said a guilty mind is "a necessary element in the indictment and proof of every crime."
The 8-1 opinion written by Chief Justice John Roberts does not end the threat to free speech, but it avoids the worst case scenario of the lowest reasonable-person standard. However, it is chilling a federal trial judge and a panel of appellate judges were willing to dispense with this fundamental protection not only for criminal defendants but also for free speech.
Jonathan Turley is a law professor.
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