Friday, 20 June 2014

Is  the  freedom  of  speech  absolute?    

There can no doubt in anyone’s mind that the freedom of speech is a cherished right that everyone should enjoy. Unfortunately, there are countries around the world where that freedom is seriously restricted. For example, if you say something nasty about the King of Thailand publicly, you will be sent to prison for many years. In Pakistan, if you deny the existence of God, you could be executed.

However, in much more civilized nations like the United States and Commonwealth nations, your freedom of speech restrictions are less stringent. However, you cannot defame someone’s reputation without justification. You cannot perjure yourself when giving testimony in court. You can be charged with contempt if you insult a judge in his courtroom.

Further, you can be convicted of a crime if you publish threatening comments in your Facebook, even when you don’t really intend to carry them out?  That is a question that is going to be discussed by the justices in the United States Supreme Court. I will now give you the background of a case that took place earlier that dealt with that specific question.

In May, 2010, Anthony Douglas Elonis’ wife of seven years moved out of their home with their two young children.  Following this separation, Elonis began experiencing some trouble at work. He was working at an             amusement park as an operations supervisor and also as a communications technician. After his wife left him, his supervisors observed Elonis with his head down on his desk crying, and he was sent home on several occasions because he was too upset to work which is understandable. 

One of the employees he supervised filed complaints against him with respect to him beginning to take his clothes off in front of her and making embarrassing remarks to her. He later placed on his Facebook, a picture of him holding a knife to the woman’s neck.
Two days after he was fired, Elonis began posting violent statements on his Facebook page. One post regarding Dorney Park Amusement (where he previously worked)  stated:

“Moles. Didn’t I tell ya’ll I had several? Ya’ll saying I had access to keys for the fucking gates, that I have sinister plans for all my friends and must have taken home a couple. Ya’ll think it’s too dark and foggy to secure your facility from a man as mad as me. Yo” You see without a fucking paycheck, I can still be fucking scary.” 
He certainly wasn’t suggesting that he would break into their homes and kiss them. That statement is clearly a threat of death to his former fellow employees.
Elonis also began posting statements about his estranged wife, Tara Elonis, including the following: “If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.” 

Several of the posts about Tara Elonis were in response to her sister’s status updates on Facebook.
Elonis also posted in October 2010:There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut (masturbate) all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault your daddy raped you. So hurry up and die, bitch, so I can forgive you.”

It must be obvious to anyone who read his Facebook that this man is a very sick weirdo.  When his wife asked for a restraining order, she got it. He then said in his Facebook that he knew it was illegal to say that he wanted to kill his wife. That statement is proof that he knew that by making those silly statements, he was breaking the law. Unless he was deemed insane, he would be convicted of making those death threats. The police and the courts generally think of weirdoes who make death threats and do so while not in the heat of a confrontation with their proposed victims, as very dangerous people.

He also said in his Facebook, “And if worse comes to worse, I’ve got enough explosives to take care of the police and the sheriff’s department.”

This statement was the basis both of Count 2, threats to Elonis’ wife, and Count 3, threats to local law enforcement. A post the following day on November 16 involving an elementary school was the basis of Count 4: In that posting he said, “That’s it, I’ve had about enough I’m checking out and making a name for myself. Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a kindergarten class The only question is . . . which one.”

This twit was arrested on December 8, 2010 and charged with transmitting in interstate commerce communications, containing a threat to injure the person of another, in violation of Chapter 18 U.S.C. Section 875(c). The grand jury indicted Elonis on five counts of making threatening communications: Count 1: threats to patrons and employees of Dorney Park & Wildwater Kingdom, Count 2: threats to his wife, Count 3: threats to employees of the Pennsylvania State Police and Berks County Sheriff’s Department, Count 4: threats to a kindergarten class, and Count 5”  threats to an FBI agent.

Elonis’ moved to dismiss the indictments against him, contending that the decision the Supreme Court held in Virginia v. Black ruled that a subjective intent to threaten was required under the true threat exception to the First Amendment and that his statements were not really threats but were protected speech.

If that argument was a rubber band on a sling shot, I think it could stretch all the way across the Pacific.

The District Court denied the lawyer’s motion to dismiss because even if the subjective intent standard was applied, Elonis’ intent and the attendant circumstances showing whether or not the statements were true threats, were questions of fact for the jury to decide.

Elonis testified in his own defense at trial. A jury convicted Elonis on Counts 2 through 5, and the court sentenced him to 44 months’ imprisonment that was to be followed by three years supervised release. 

Elonis filed a post-trial Motion to Dismiss Indictment with Prejudice under Rule 12(b)(3); and for New Trial under Rule 33(a), to Arrest Judgment under Rule 34(b) and/or Dismissal under Rule 29(c). 

The District Court denied his motion to dismiss the indictment, finding the indictment correctly tracked the language of the statute and stated the nature of the threat, the date of the threat and the victim of the threat. The court also stated the objective intent standard conformed with the Third Circuit precedent. The court found the evidence supported the jury’s finding that the statements. 

Elonis was convicted under Chapter 18 U.S.C. section 875(c) for “transmitting in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” (which means to   injure the actual body of someone).

Elonis appealed the verdict by stating that the trial judge incorrectly instructed the jury on the standard of a true threat. Actually, the trial judge gave Elonis’ jury the instruction that a statement is a true threat when a defendant intentionally makes a statement in a context  under such circumstances wherein a reasonable person would foresee that the such a statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.

The Supreme Court of the United States previously ruled in United States v. Kosma that a true threat requires that the defendant intentionally make a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker of the statement communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President, (or other person) and that the statement not be the result of mistake, duress, or coercion.

It seems to me that Elonis didn’t suffer from those particular handicaps and subsequently he made the statements under his own volition with hatred of the recipients of those statements in mind.

The question that would be in everybody’s mind if they received such statements would be whether or not they should be taken seriously. If so, then the offence of threatening has been established. 

Here is an interesting ruling of the Supreme Court that should fascinate you.

It articulated the true threats exception to speech protected under the First Amendment in Watts v. United States. During a rally opposing the Vietnam war, Watts told the crowd, “I am not going. If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” (President Johnson)

The Court reversed his conviction for making a threat against the president because the statement was ‘political hyperbole’ (exaggerated form of speech) rather than a true threat. For example, if someone nowadays didn’t like what the current president was doing with the Iraqi problem and said in a public gathering, “I think our president is wrong in what he is doing and would probably be better off dead so someone else could solve the problem.” such a statement would probably be considered political hyperbole. Of course that would be a very stupid statement to make because some nut case would take that statement seriously and try to shoot the president. If you don’t think that is not possible, consider what happened centuries ago when King Henry II mused that he hoped someone would rid him of his friend, Archbishop Thomas Becket. Some of his knights nearby overheard the king’s statement and took him seriously and murdered the archbishop much to the king’s sincerest regret.

Did Elonis really intend to carry out his threats to kill all those people or were his threatening statements simply hyperbole?

In R.A.V. v. City of St. Paul, The Supreme Court said,

The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence” and “from the disruption that fear engenders,” (stimulates) in addition to protecting people “from the possibility that the threatened violence will occur.”

At Elonis’ trial, his wife testified said that she took his statements seriously. She said, “I felt like I was being stalked. I felt extremely afraid for mine and my children’s and my families’ lives.”                                                               

I believe that this man’s statements were a form of intimidation. The Supreme Court ruled on that issue also in that same case. It said,

“Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Clearly, those to whom Elonis’ threats were directed had every right to fear for their lives and to feel intimidated.

In my opinion, Elonis made these statements to warn the authorities to back off and let him do his thing against his wife unmolested—his thing being to threaten his wife for the purpose of either returning to him or giving him back his children.  
To lose the protection of the First Amendment and be lawfully punished, the threat of death must be intentionally or knowingly communicated to either the object of the threat or to a third person.

There are times when a person says in a joking manner, “He should be squashed like a bug.” or, when jokingly speaking about his children, “I should have drowned them at birth.” No one should be expected to take such comments seriously so obviously they are not true threats of death.

The real question facing jurors as to the real motive of a defendant in a case like this one is whether or not a reasonable person making the comment would foresee the statement as being understood by anyone who receives it as a real threat to their physical wellbeing. I believe that Elonis intended those reading his Facebook rantings to take his threats seriously and be in fear of their lives if they acted against his plans to get even with his wife Obviously, a threat is made willfully when any person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm.

In Elonis’ appeal, he contended that the indictment against him was insufficient because it did not quote the actual language of the threatening statements.

That is a good point. An indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.

However, the Federal Rules with respect to cases like this one states that an indictment is sufficient when it “(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.

The courts have found an indictment is sufficient “where it informs the defendant of the statute he is charged with violating, lists the elements of a violation under the statute, and specifies the time period during which the violations occurred.” The Eighth Circuit accepted an indictment that did not include the verbatim contents of a letter, the date it was written, or the name of the author in Keys v. United States.

That makes a lot of sense. A person can drop a threatening letter off at another person’s home and it could be used as evidence against the author of the letter even if it isn’t dated, doesn’t have a name attached to it and only one section of the letter is used in the indictment. His fingerprints on the surface of the letter would be all that is needed to prove that he is the letter’s author.

You can see why this is the right thing to do. For example, if the author of the letter has written his letter as a manifesto that is twenty pages long and only one sentence actual threatens to kill a certain person, the prosecution would hardly want to include the entire letter as part of the indictment. They would cherry pick what it needs from the letter to use in the indictment. Later, they can submit the entire letter as evidence if it will show the jury what was really on the mind of the man who made the threat.

In Elonis’ case, the indictment on counts 3, 4 and 5 was identical, but stated each date of the threat, the nature of the threat, and the subjects of the threat. Count 3 alleged “a threat to injure employees of the Pennsylvania State Police and the Berks County Sheriff’s Department”; Count 4 alleged “a threat to injure a kindergarten class of elementary school children”; and Count 5 alleged “a threat to injure an agent of the Federal Bureau of Investigation.” Elonis contended however that the indictment was still deficient because they did not include the allegedly threatening statements.

The statements wouldn’t be necessary because of two reasons. (1)  He knew what he wrote and (2) he knew who the statements were directed to.

Further, the indictment was sufficient because the counts described the elements of the violation, the nature of the threat, the subject of the threat, and the time period of the alleged violations.

Even if Elonis’ threats were truly based on conditions not being met to his satisfaction, they could still be considered as true threats. For example, if you say to a bank teller that if she doesn’t give you the money in her till, you will shoot her dead, you in effect have threatened her with death because you will have intimidated her under the threat of death if she doesn’t comply with your demands. Obviously if Elonis’ wife had returned to their home, it would only be because of her fear that he would kill her if he didn’t return home as a direct result of his implied threats of death. The District Court in which Elonis was tried found that a reasonable jury could find his death statements to be true threats.

There is no rule that a conditional statement cannot be a true threat since the words and context can demonstrate whether the statement was a serious expression of intent to harm.  For this reason, the appeal courts give substantial deference to a jury’s verdict and if there is insufficient evidence for the jury to find the statement was a threat, they can acquit and alternatively, if there is sufficient evidence to determine that the threat was real, then they can convict.  

At Elonis’ trial, the jury was convinced that on or about November 6, 2010, through on or about November 15, 2010, in Bethlehem, in the Eastern District of Pennsylvania, and elsewhere that Elonis knowingly and willfully transmitted in interstate and foreign commerce, via a computer and the Internet, communication to others, that is, communications containing threats to injure the person of others.  Their verdict listed who had been threatened by Elonis.

The judge sentenced Elonis to prison for a period of 44 months and he served the entire sentence in prison because the crime he was convicted of were federal crimes and those who are convicted of federal crimes are not eligible  for parole.

He then appealed to the 3rd Circuit Court of Appeals to overturn the conviction and in September 2013, that court upheld the conviction of the lower court. He has since filed a Writ of Certiorari (a written  request for permission to have a matter heard in a higher court) to the Supreme Court for questions of law to be answered by the high court. The questions in the document are as follows;

Can a person be convicted of the felony “speech crime” of making a threat only if he subjectively (based on his emotions only)  intended to threaten another person, and whether he can be convicted if he negligently misjudges how his words will be construed and a reasonable person would deem as a threat?

Quite frankly, I don’t see how he can get the Supreme Court to rule in his favor. People commit murders when they are emotionally hyped up and they are still convicted of those murders. Further, he didn’t raise that issue at his trial or the Appeal court.

And he now expects the Supreme Court to rule that because he misjudged how the people he threatened would deem his threats; he should therefore be deemed innocent of the crimes he was convicted of. That is about as pointless as asking a court to rule that when a murderer shot his victims, he didn’t deem that they would suffer pain? His lawyer’s reach for absolution for Elonis is like Man’s reach for the stars—both he and we will never get there. 

I will keep you abreast of the Supreme Court’s ruling when I learn of it. It will be at the bottom of this article as an UPDATE.  

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