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Tuesday, December 02, 2014

Elonis v. United States, Part 2

Oral argument in Elonis v. United States was yesterday, and props to the Notorious RBG for getting back into it after crushing it at the gym and, later, the hospital.  But Justice Roberts quoting Eminem really takes the rap cake (see below for more on that!).


As expected, the argument centered on the intent required to make something a true threat, for which criminal liability could be imposed.  The government wanted a reasonable person standard—negligence, basically.  The Petitioner wanted a knowledge—not purpose—standard.  We could roughly call this a recklessness standard, under which liability may attach when someone says something he knows is virtually certain to cause another to perceive the statement as a threat.  Even for the Petitioner, then, purpose to cause the perception isn’t necessary.

One can look at this case through a First Amendment or a criminal law lens, a distinction that Justice Breyer recognized.  Under both approaches, I think the government loses: the First Amendment implications that the Court recognized are at play here are too weighty for a negligence standard, and the criminal law rarely goes in for negligence, especially where the crime is a felony, as in Elonis.

The Petitioner has the better case as to mens rea because I think it takes into consideration both the First Amendment and criminal law approaches.  Recklessness is a high, First Amendment-protective standard that appropriately imposes criminal liability where the speaker really, really should have known the likely result of his words.  It also avoids the evidentiary problem of distinguishing purpose from knowledge, which all the justices, especially Alito, seemed to easily grasp.  Prognostication isn’t my thing, but my bet is 8-1 (Thomas, J., dissenting) in favor of Petitioner.

Justice Roberts provided my personal favorite parts of the argument.  Not only did he quote Eminem, which is prima facie classic, but he used the rap lyrics to place Elonis’ statements in the contexts of (1) aspiring rap artist, (2) rap in general, (3) online speech, and (4) online subcultures.  As I mentioned in a prior post, this online context may be especially important to the meaning of speech compared to the same speech in the “real world.”  It doesn’t look like the Court will take that on (which was presented to it in an ACLU amicus brief), but that’s ok.  It looks like one Chief Justice in the room understands the import of context.


Posted by Steven R. Morrison on December 2, 2014 at 11:56 AM | Permalink


I beat you to it! I wonder if he purchased the download, or is he strictly LP?

Posted by: Steven R. Morrison | Dec 2, 2014 10:40:13 PM

I was planning on blogging about the Chief name-dropping Eminem.

Posted by: Howard Wasserman | Dec 2, 2014 9:55:04 PM

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