Hazy rul­ing on abu­sive speech

When do on­line com­ments cross the line into crim­i­nal­ity? A high court rul­ing isn’t clear enough.

Los Angeles Times - - OPINION -

In over­turn­ing the con­vic­tion of a man who posted vi­o­lent “rap lyrics” about his es­tranged wife and oth­ers on Face­book, the Supreme Court on Mon­day rightly made it harder to crim­i­nal­ize hate­ful speech. But the de­ci­sion stopped short of re­quir­ing that pros­e­cu­tors prove that a de­fen­dant in­tended to make a threat be­fore he or she can be pun­ished, and it failed to enun­ci­ate a clear stan­dard for de­ter­min­ing when speech crosses the line into crim­i­nal­ity.

Like many pro­tag­o­nists in free-speech cases, An­thony D. Elo­nis is a re­pel­lent fig­ure. Af­ter his wife left him, Elo­nis wrote: “If I only knew then what I know now, I would have smoth­ered [you] with a pil­low, dumped your body in the back seat, dropped you off in Toad Creek and made it look like rape and mur­der.” When his wife ob­tained a Pro­tec­tion From Abuse or­der, he posted this on Face­book: “Fold up your PFA and put it in your pocket / Is it thick enough to stop a bul­let?”

Elo­nis in­sisted that his rants were “ther­a­peu­tic” and not threats to com­mit vi­o­lence. Nev­er­the­less, he was con­victed af­ter the jury was in­structed that he could be found guilty if a rea­son­able per­son would fore­see that his state­ments would be in­ter­preted as threats by those to whom they were di­rected.

Writ­ing for the ma­jor­ity, Chief Jus­tice John G. Roberts Jr. said that the “rea­son­able per­son” stan­dard was faulty be­cause it didn’t take into ac­count Elo­nis’ men­tal state. Wrong­do­ing, Roberts wrote, “must be con­scious to be crim­i­nal.” That’s an im­por­tant prin­ci­ple and the court was right to in­sist on it.

But the ma­jor­ity wasn’t com­pletely clear about what men­tal state is re­quired for some­one to be con­victed of mak­ing a threat. Roberts re­jected an ar­gu­ment by Elo­nis’ lawyers that a speaker must sub­jec­tively in­tend to make a threat in or­der to be pun­ished; it was enough, the chief jus­tice said, if pros­e­cu­tors could prove that the de­fen­dant had “knowl­edge” that his state­ments would be per­ceived as a threat.

But Roberts de­clined to say whether a speaker could also be pun­ished for “reck­less” ut­ter­ances that he should have known would be per­ceived as a threat. The re­sult of that equiv­o­ca­tion, Jus­tice Sa­muel A. Al­ito Jr. com­plained in a sep­a­rate opin­ion, is that lower courts lack guid­ance, mean­ing that some de­fen­dants who should be con­victed of mak­ing threats might go free, and some who are in­no­cent will be con­victed.

The In­ter­net is awash with abu­sive and vi­o­lent com­ments. The court should have given clearer di­rec­tion about which of those ugly ut­ter­ances can be pros­e­cuted in a court of law.

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