June 1st: The first and fourth ammendment

For a brief time, we have freedom from the NSA. That’s the fourth amendment part.

And today, the Supreme Court has ruled in favor of Anthony Elonis, who had previously been sentenced to a 44-month prison term after posting threatening messages on social media.

44 months for posting ugly comments.

What did he do? He posted very graphic lyrics about his wife, co-workers, a kindergarten class and law enforcement.  For this, he was fired from his job and spent three years in prison. 


He claimied he was acting as Eminem or The Whitest Kids U’Know, and he made references to his “art” and first amendment speech rights as well as using smiley faces to indicate some threats were “jokes”.

He also claimed these lyrics were therapuetic and never intended harm. That “never intended to harm” bit was the lynchpin of the Supreme Court’s ruling.

Now, his wife claimed she was terrified, and I’m certain she was. However, SCOTUS looked at it from the standpoint of intent

His violation was of a federal law which outlaws the transmission of “any communication containing any threat . . . to injure the person of another.”

However, the Supreme Court made a distinction, by saying:

The question is whether the statute also requires that the defendant be aware of the threatening nature of the communication, and—if not—whether the First Amendment requires such a showing.

In short, the Supreme Court found:

  • That the lower court’s instruction that only negligence was required with respect to a communication of a threat was not sufficient to support a conviction.
  • That the law does not indicate whether the defendant must intend the threat, and has no particular requirement as to mental state; and that scientier (a legal word meaning intent to do wrong) was not necessary to be present (citing, in part, a prior bank robbery caseL “In some cases, a general requirement that a defendant act knowingly is sufficient, but where such a requirement ‘would fail to protect the innocent actor,’ the statute ‘would need to be read to require . . . specific intent.’)

In other words, if one is stupid enough to say “I’m going to kill my neighbor” but not actually mean it, then it’s not necessarily a violation of the statute in question.

Which, I think, is good. In a completely social world, people routinely say stupid things, and to have some sort of thought police determine that a statement, said in anger, should then be subject to severe penalties, is in contradiction to the original intent of the first ammendment. 

Now, do I think Elonis is an idiot for doing what he did? Of course. But I’ll still defend his right to be an ass.

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