“Another Case Of Roberts’s Judicial Minimalism”: Supreme Court; Your Facebook Threats Aren’t Necessarily Real Threats
Today, the Supreme Court held that you can post a threat to kill your wife on Facebook, but you’re not guilty of making a threat.
This is good news if you’re focused on free speech, especially online. It’s bad news if you’re concerned about the capacity of information technology to amplify threats, stalking, and coercion.
The result in the case, Elonis v. U.S., comes as something of a surprise, especially because it was a 7-2 decision, with Chief Justice Roberts writing for the court. That means the court’s liberal wing, the moderate-conservatives (Kennedy, Roberts) and even Justice Scalia were all in agreement.
The reason, however, was not the First Amendment. Court-watchers, and the defendant, Anthony Elonis, noted that the “threat” was simply a set of rap lyrics, and debated whether they were constitutionally protected. But the Court itself didn’t go there, instead basing its ruling purely on the federal criminal statute.
That statute says that anyone who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” is guilty of a felony. But what is a “threat,” exactly? Specifically, does it require evidence of an actual intent to harm the person, or is it enough “that a reasonable person would regard Elonis’s communications as threats”?
The district court had said the latter, but today, the Supreme Court disagreed. Threatening language is not enough. Targets feeling threatened is not enough. Criminal law requires mens rea, an “evil mind,” and in this case, the Court held that there must be some specific intention to threaten. Since that wasn’t established in this case (and since Elonis assiduously denied having it) the Court threw out his conviction.
(In dissent, Justice Thomas argued that a “general intent” should be sufficient, while Justice Alito argued for an intermediate standard of “recklessness.”)
Now, here’s where it gets interesting. Elonis is also known as “Tone Dougie,” and has produced some seriously bad rap lyrics, quoted at length in Chief Justice Roberts’s opinion. Indeed, to bleep out the bad words required 22 asterisks. The best parts of Tone Dougie’s oeuvre aren’t even the initial threats to his ex-wife, but the meta-threats that reference his investigation by the FBI. Here’s a sampling, asterisks provided by the Supreme Court:
You know your s***’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent lady stood so close
Took all the strength I had not to turn the b***• ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms of her partner…
S***, I’m just a crazy sociopath
that gets off playin’ you stupid f***s like a fiddle
And if y’all didn’t hear, I’m gonna be famous
Cause I’m just an aspiring rapper who likes the attention
who happens to be under investigation for terrorism…
Fab Five Freddy this is not. It’s not even Biz Markie. But it does bear a passing resemblance to someone Justice Alito referred to as a “well-compensated rapper,” namely Eminem.
The difference is that Eminem’s lyrics are clearly contained within a work of art, but Tone Dougie’s were simple Facebook posts. Yes, they rhymed (sort of), but they were simple posts.
“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.”
The Court noted that had Elonis typed these words out and snailmailed them to his ex-wife, it would almost certainly constitute a criminal threat, because it was made directly to the intended victim and thus counts as evidence of mens rea. (The Court didn’t use the term snailmail, of course—and referred to Facebook as a “social networking Web site.”) Presumably, if the text was emailed—or maybe direct-messaged?—it would also, thus, be a criminal threat.
So the only reason it wasn’t is that it was posted semi-publicly on Facebook. This allowed Elonis to tell one Facebook friend that “I’m doing this for me. My writing is therapeutic,” and to proclaim himself a victim of artistic censorship. Therapy, art, whatever—but not actual threats.
(In a detail not widely reported in the press, Elonis also posted “therapeutically” about his co-workers—at one point posting a picture taken at Halloween of him holding a toy knife to a co-worker’s neck, with the caption “I wish.” Classy.)
Now, throwing out Elonis’s conviction does not mean that he’s permanently off the hook. He could be tried again, although the state would now have to prove that he intended to threaten his targets.
But the Court’s decision is a victory for free speech advocates, and a loss for those worried about harassing speech online.
On the one hand, you can’t be convicted just because someone else finds what you said on Facebook to be threatening. As a poster child for civil liberties, Tone Dougie now joins the KKK marchers in Skokie. We may not like what he says, but we’re proud to defend his right to say it. Civil liberties protect all of us.
On the other hand, Facebook is a unique, new medium for harassment. (This, incidentally, was the company’s rationale for its “real names” policy.) Arguably, threats made in public are even more terrifying than those made in private, especially if other people “like” what you’ve said.
The Court is treating it like a newspaper, or an open mic at the poetry slam, but many of us relate to it far more intimately. It’s a venue all its own—a combination of telephone, bulletin board, and, occasionally, mob scene.
Moreover, requiring an intent to threaten makes it very easy for stalkers and vengeful exes to deny liability. Oh, that wasn’t a threat, I was just musing aloud. Right.
Of course, since the Court declined to entertain the constitutional questions, this is all just a matter of statutory law, and statutes can be changed. The Court also successfully avoided the question of when art is art. It didn’t say what Elonis’s words were, only that they weren’t actual threats. Elonis is thus yet another case of Roberts’s judicial minimalism.
Though I bet it doesn’t feel that way to Elonis’s ex-wife.
By: Jay Michealson, The Daily Beast, June 1, 2015
“A Supreme Sham”: They Call’m As They Prefer To See ‘Em
We can’t know yet how the Supreme Court will rule on same-sex marriage in June, but we already do know this: The decision won’t be based on a dispassionate reading of the Constitution. The 5-4 (or perhaps 6-3) ruling will be a reflection of the political orientation, values, and visceral feelings of each justice; as their “questions” (actually pronouncements) showed this week, every justice except perhaps Anthony Kennedy came into this case with his or her mind made up.
Each side will present elaborate rationales to justify its views, but legal merit will not determine which side prevails. The ruling will simply represent the results of a mini-election on a court as nakedly partisan and polarized as the country itself — a court with four “blue” justices, four “red” ones, and one swing vote. “It becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means,” says University of Chicago law professor Justin Driver, “and that justices are not merely politicians clad in fine robes.”
It was not always thus. Until recent decades, the court’s landmark decisions often came in one-sided rulings (Brown v. Board was 9-0). Presidents sometimes nominated distinguished jurists with indistinct ideologies, such as Byron White and David Souter, whose philosophies evolved over time. That hasn’t happened since Ronald Reagan appointed Kennedy, and it isn’t likely to happen again. So let’s drop any remaining pretense that the justices are impartial arbiters calling “balls and strikes” on the issues that divide us: gay marriage, ObamaCare, voter ID, campaign finance, religious freedom, et al. They call ’em as they prefer to see ’em.
By: William Falk, The Week, May 1, 2015
“A Cop’s ‘Large Hunch’ About Criminal Wrongdoing Won’t Do”: The Supreme Court Just Checked Cops’ Power To Extend Traffic Stops
Cases involving the Fourth Amendment’s proscription on unreasonable searches and seizures are the sleepers of every Supreme Court term. Unless the justices are confronted with new technologies or particularly invasive government practices—like body-cavity or thermal-imaging searches—these decisions rarely grab headlines, leaving only prosecutors, defense attorneys, and law professors to ponder their significance.
But this can’t be the norm—not in the wake of Ferguson, with heightened awareness of abusive policing. Today more than ever, an understanding of what limits the Constitution places on police and the Supreme Court’s interpretation of those limits should be essential knowledge. Anything less, to borrow the words of Justice Sonia Sotomayor, would simply reduce the Fourth Amendment “to a useless piece of paper.”
Because at the root of Rodriguez v. United States, decided Tuesday by the Supreme Court, lies one of the most common, and perhaps the only, interaction law-abiding citizens will ever have with law enforcement: traffic stops. Being pulled over is so mundane, I wondered in February whether Chief Justice John Roberts had ever been inconvenienced by the practice, perhaps as a result of driving with a broken taillight—the kind of infraction that triggered the killing of Walter Scott in South Carolina earlier this month.
When Rodriguez was argued in January, Roberts asked how exactly traffic stops go down in real life, saying lightheartedly, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’” That drew laughs from the courtroom—the implication being that Roberts wouldn’t admit to ever having broken the law—but it also suggested that perhaps he doesn’t quite grasp how humiliating these encounters can be. This prompted a rebuttal in open court from Sotomayor, who told the chief that she’d been stopped and that the experience of being kept longer than the time required to give her a ticket was “annoying as heck.”
Whether Roberts eventually grasped as much is unclear, but he did join the six-justice majority that agreed that police can’t extend the length of a traffic stop beyond the time necessary to inquire into the alleged traffic violation. In a triumph for citizens’ rights, the Supreme Court ruled that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”
That’s a big deal, if only because a lot can happen whenever police extend a traffic stop, even for a few minutes longer than necessary. To be sure, police already have wide latitude to stop anyone who is observed violating traffic laws; if probable cause exists that you’re not obeying the rules of the road, police are justified in stopping you. But what if, during the course of the stop, police also suspect you’re up to no good? Can they just hold you while they call in the dogs, as happened in Rodriguez, or for backup to conduct a wider criminal investigation? The lower courts that originally considered Rodriguez thought so, reasoning that a stop lasting, say, seven to ten minutes longer than necessary “was not of constitutional significance”—that the annoyance merely amounted to a “de minimis intrusion” on a motorist’s freedom of movement.
The Supreme Court didn’t buy that argument. “Authority for the seizure… ends when tasks tied to the traffic infraction are—or reasonably should have been—completed,” wrote Justice Ruth Bader Ginsburg for the majority. The court focused exclusively on the true “mission” of traffic stops—incidentals such as “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” All of these things are well and good when the initial stop is valid.
The problem arises when a well-meaning officer turns the traffic inquiry into a prolonged, crime-fighting one. Such unrelated “detours” away from the original traffic mission, the court observed, are unconstitutional without independent, reasonable suspicion that an actual crime has taken place. A cop’s “large hunch” about criminal wrongdoing won’t do.
That’s a commonsense approach—no one should be stopped for even a moment longer than absolutely necessary. But will the ruling deter police from trying other dilatory tactics? Rodriguez, for one, doesn’t explicitly forbid officers from, say, taking their sweet time while running your license plate or from engaging in “friendly” small talk aimed at eliciting consent. These end-runs are still largely acceptable, and only time will tell what other methods cops will employ to bide their time and divine suspicion where initially there was none.
Until then, the Supreme Court should be commended for making the right call and delivering a ruling that, though far from a blockbuster, should encourage anyone who cares about the continued vitality of the Fourth Amendment. In post-Ferguson America, there’s just no other section of the Constitution that matters more—the power of policing rises and falls with every pronouncement on it.
By: Cristian Farias, The New Republic, April 22, 2015
“The Tea Party Will Never Understand The Constitution”: What The Right Misses About Its Favorite Document
With the 2016 election cycle having kicked into first-gear already, any American who hasn’t inured themselves to the monotonous (and often ultimately meaningless) repetition of the word “Constitution” is advised to get to self-desensitizing — and quick.
Sens. Rand Paul and Ted Cruz have already made a fetishized version of the U.S.’s supreme governing document central to their campaign rhetoric; and even politicians less beloved by the supposedly Constitution-crazy Tea Party, like Jeb Bush or Hillary Clinton, are likely to soon follow suit. That’s how American politics functions now, in the era of the NSA, Guantanamo Bay, lethal drone strikes and endless war.
But as that list of questionable policies suggests, there’s an unanswered question lurking behind so much of our happy talk about the Constitution — namely, do we even understand it? As dozens of polls and public surveys will attest, the answer is, not really. And that’s one of the reasons that Yale Law School professor Akhil Reed Amar has decided to write a multi-book series about the Constitution so many Americans claim to love, but so few seem to understand. “The Law of the Land: A Grand Tour of our Constitutional Republic,” released earlier this month, is that project’s latest addition.
Recently, Salon spoke over the phone with Amar about the Constitution, his books, and why he sees Abraham Lincoln as perhaps the United States’s real founding father. Our conversation is below and has been edited for clarity and length.
So this book is part of a larger, multi-book project on the Constitution. The first was a biography of the document, the second was about its “unwritten” provisions, and this is the third. What’s your focus this time?
The third book in this project is a geographical slicing of the story; ours is a vast republic of massive diversity, and the Constitution looks a little different in different states and regions. I try to show all of that that through 12 stories … each of which says something general about the United States Constitution but does so through the window of a particular state. It discusses a person or an idea or a case or an event particularly associated with that region that also casts light, more generally, on our Constitutional project.
So how did what you call “brute geography” influence the way we understand the Constitution today?
The very breadth of the American landmass and its distance from the old world were huge elements in the American founding and in the Civil War experience. The idea of creating an indivisible union in the 1780s, the idea of forming a more perfect union, was an idea powerfully influenced by these two geographic factors: a wide moat between the Old World and the New World (known as the Atlantic Ocean) would be able to protect Americans from Old World tyranny in the same way the English Channel protected Britain from much of the militarism of the European Continent…
But in 1787, as Americans looked around the world, they saw that Britain was free, and Britain was free because England and Scotland had merged, had formed an indivisible, perfect union that would protect liberty because they had gotten rid of land borders on the island and only needed a navy to protect themselves. That worked for England and that would work for America even better, because we’d have an English Channel times 50.
This will become manifest destiny and the Monroe Doctrine; we’ll control our hemisphere and we’ll be protected from Europe … Our Constitution largely succeeds because there’s no major standing army in peacetime for most of American history, and that fact is created by some brute geographic realities.
I’m speaking to you now right around the 150th anniversary of Lincoln’s assassination. He looms very large in your book; you describe him in some ways as almost prophetic. What made Lincoln’s understanding of the country and the Constitution so profound?
We live in Lincoln’s house. The Framers’ house was divided against itself; and, because of slavery, it fell. That failure is called the Civil War, and Lincoln rebuilt [the country] on a solid anti-slavery foundation, a foundation that would be strengthened after his death by the ratification of the Thirteenth Amendment (which abolished slavery everywhere, irrevocably), the Fourteenth Amendment (which promised racial equality) and the Fifteenth Amendment (which promised equal voting rights).
I begin the book with Lincoln because he transformed the Union. He saved it and transformed it and … his story was very much influenced by, literally, where he came from. He has a vision of the Constitution that’s very much influenced by Illinois, in particular, and by the Midwest more generally. He comes from a part of the country that was the Northwest Territory, that was always free soil even before the Constitution, and he has a very free-soil vision.
How so?
The language of the 13th Amendment is borrowed, word-for-word, from the language of the Northwest Ordinance. Lincoln thinks that the nation created the states, which, of course, Robert E. Lee … could never buy into. Robert E. Lee would say that the states created the Union; but the Midwest [perspective] would say … before Illinois was a state, it was a territory; the Union created these new states out of nothing. That’s a very Midwestern perspective on the Constitution.
Lincoln is, far and away, the most important constitutional decision-maker of the last two centuries; and arguably the most important constitutional decision-maker and interpreter ever.
But Lincoln was never a judge nor a constitutional scholar. He was a politician.
Most people are taught in high school that the most important constitutional decision is Marbury v. Madison, but that’s not even the most important constitutional decision of 1803. The Louisiana Purchase was far more important than Marbury v. Madison, because it doubled the landmass of America and made sure that the country would survive. When you understand that, you understand that many important constitutional decisions are made not by judges but by presidents.
The two most important constitutional decisions ever are Lincoln’s decision to resist [the South’s] unilateral secession, and Lincoln’s decision to issue the Emancipation Proclamation, which would lead to an end of slavery — that is transformative, and Lincoln made those decisions unilaterally as president. Had these issues reached the U.S. Supreme Court, controlled as it was [during Lincoln’s time] by Roger Taney, a fierce opponent of Lincoln, the Court might very well have tried to invalidate Lincoln’s projects.
We live in a Constitution utterly transformed by the 13th, 14th, and 15th amendments, and we would have none of those but for Lincoln.
Lincoln aside, though, you also argue that geography has played a big role in the Supreme Court — which, of course, is supposed to be the chief interpreter of the Constitution. How did geography influence the Court’s history?
Let’s take the most infamous judicial ruling of all time, the Dred Scott decision of 1857. It emerges from a Supreme Court that’s profoundly malapportioned: five of the nine justices on the Dred Scott court come from the slave-holding South, even though only a third of the population lives in that region.
Part of that is because entire antebellum system is skewed towards the South because of the three-fifths clause, which gives slave states extra clout in the House of Representatives and therefore the Electoral College. Presidents are picking justices, and the presidency tilts towards the South because of the three-fifths clause; almost all your early presidents are either slave-holding Southerners or “Northern men of Southern sympathies” — that is, pro-slavery Northerners.
If we view the Constitution and American history with more of a focus on the role played by geography, what are some the implications for U.S. politics today and in the near-future?
One of the things I’m trying to tell you in this book is how we can see presidential elections and our political polarization in new ways if we’re attentive to states and regions.
Our parties are polarized geographically; that this is not the first time that’s so (early on, it was the South against the North; Jefferson against Adams). The geographic alignment is remarkably similar to the geographic alignment in Lincoln’s time with this interesting twist: the Democrats have become the party of the North and the coasts and the Republicans have become the party of the former Confederacy. The parties have basically flipped, but it’s the same basic alignment…
One of the other big things I want you to see is how regions and states are hugely important in, for example, presidential politics. I talk about the significance in this book, in particular, of Ohio and Florida in the Electoral College and also of Texas. Is it a coincidence that Marco Rubio comes from Florida? That Jeb Bush is the governor of Florida who was born in Texas and whose father and brother had their political bases in Texas? That Rand Paul was born in Texas and his father ran for president from Texas? That Ted Cruz is from Texas? That Rick Perry is a former governor of Texas?
By: Elias Isquith, Salon, April 21, 2015
“Interpreting A Statute Requires Reading All Of It”: Challenge To Affordable Care Act Hinges On 4 Words In Isolation, Not The Full Law
When the Supreme Court hears oral arguments in King vs. Burwell, all eyes will be on Chief Justice John G. Roberts Jr., to try to figure out which way he’s leaning. After all, this case is the latest challenge to the Affordable Care Act, and the last time the law was before the high court, Roberts was the deciding vote in favor of the government. There’s one very good reason to think the chief justice will rule for the government again: He’s too good a lawyer to do otherwise.
King is all about the meaning of the Affordable Care Act, specifically, whether the law makes tax credits to low- and middle-income Americans available to all individuals who qualify based on income, or only to those who live in states with state-run healthcare exchanges. The plaintiffs argue that tax credits aren’t available to individuals who purchase their insurance on exchanges run by the federal government. But it’s difficult to imagine a legal mind like Roberts’ agreeing with an argument as weak as the one the plaintiffs have offered.
Interpreting a statute requires reading it carefully — all of it. You can’t just look at a few words in isolation. As Justice Anthony M. Kennedy wrote in 2006 (in an opinion that Roberts joined), “Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.”
When you look at the entire law, it’s clear that tax credits should be available on all exchanges, both state and federal. The statute defines who qualifies for a tax credit based on income level (not state of residence), and it also makes clear that federal exchanges are the functional equivalent of state-run exchanges by requiring that states set up exchanges, but allowing the federal government to set up “such exchange(s)” in their stead if they elect not to.
To now argue otherwise, the plaintiffs in this case rely on just four words in the law — “established by the State” — that appear in the formula for calculating the amount of the credit (not in the provision defining which individuals qualify for it). But a careful reading of the statute shows that those four words are there to make clear that the relevant exchange for calculating the amount of the credit is the exchange in the state where the individual purchased his or her insurance (state-run or not).
This problem is fatal to the plaintiffs’ argument, as the chief justice should surely recognize. But there are many other problems with their argument, as has become increasingly clear in the run-up to oral argument. Most significant, the plaintiffs have long maintained that Congress intentionally limited tax credits to encourage states to set up their own exchanges. The members of Congress who led the passage of the law have always said otherwise. As a number of the chairs of the committees that crafted the Affordable Care Act wrote last year, “None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces.”
Indeed, the evidence against the plaintiffs’ case on this point is so strong that in their most recent filing with the Supreme Court, they argue that it is “irrelevant whether Congress subjectively intended” to limit the tax credits. The plaintiffs may hope that these holes in their legal argument don’t matter. But these points should matter to the chief justice and the rest of the court.
There’s already been a great deal of speculation about why Roberts might rule for the government. Some pundits and court watchers have pointed out that a ruling for the plaintiffs in this patently partisan attempt to gut the Affordable Care Act might impair the legitimacy of the court. Others in the legal and business communities have noted that a ruling against the government would result in significant chaos and disruption to insurance markets in the affected states because the tax credits are necessary for the law’s other market reforms to work properly.
These points are both right. But if the chief justice votes for the government, as he should, the reason may be far simpler: He’s too good a lawyer to do otherwise.
By: Brianne J. Gorod, Appellate Counsel at the Constitutional Accountability Center, was an author of the brief filed on behalf of some members of Congress and state legislators in King vs. Burwell. She wrote this for the Los Angeles Times; The National Memo, March 2, 2015
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