Man who ranted on­line wins high court rul­ing

Los Angeles Times - - TECHNOLOGY - By David G. Sav­age david.sav­age@la­times.com

WASH­ING­TON — The Supreme Court made it harder Mon­day to pun­ish peo­ple who post threat­en­ing com­ments on­line, rul­ing that pros­e­cu­tors must show that the sender had the re­quired crim­i­nal in­tent to threaten some­one.

Be­fore, most judges had said peo­ple could be pros­e­cuted for send­ing threats on­line if a “rea­son­able per­son” read­ing the words would think they con­veyed a true threat.

But in a case in­volv­ing hos­tile com­ments made on Face­book, the high court re­jected that view Mon­day and de­cided that peo­ple can­not be con­victed of the crime of send­ing threats un­less they had an “aware­ness of some wrong­do­ing,” which is needed to show crim­i­nal in­tent.

The court’s opin­ion rested on a sub­tle point of crim­i­nal law and said noth­ing about the 1st Amend­ment or free speech. But it is likely to shield peo­ple who rant on­line or muse darkly about car­ry­ing out vi­o­lent acts.

It is a set­back for vic­tims of do­mes­tic vi­o­lence, who say pros­e­cu­tors need more lee­way to go af­ter ex-spouses and oth­ers who post spe­cific threats on the In­ter­net.

By an 8-1 vote, the jus­tices reversed the con­vic­tion of An­thony Elo­nis, a Penn­syl­va­nia man who posted on Face­book what he called “ther­a­peu­tic” rants about his es­tranged wife.

“Did you know that it’s il­le­gal for me to say I want to kill my wife?” he asked in one post­ing. In an­other, he wrote he would “not rest un­til your body is a mess, sealed in blood and dy­ing from all the lit­tle cuts.”

Her friends alerted au­thor­i­ties. Soon af­ter a fe­male FBI agent came to his house to speak to him, Elo­nis posted on Face­book that he was about to “pull my knife [and] slit her throat.”

Fed­eral law makes it a crime to trans­mit “any threat” to “in­jure” an­other per­son. Elo­nis was pros­e­cuted, con­victed by a jury and sent to pri­son for three years and eight months.

When the Supreme Court took up his ap­peal in Elo­nis vs. United States, 1st Amend­ment ad­vo­cates hoped for a broad rul­ing that would strengthen the prin­ci­ple of free speech on the In­ter­net.

Chief Jus­tice John G. Roberts Jr., how­ever, said the court de­cided to fo­cus nar­rowly on a his­toric prin­ci­ple of crim­i­nal law. Be­fore some­one can be con­victed of a crime, they should be at least aware that what they were do­ing was wrong. In this in­stance, Elo­nis seemed to be­lieve that his writ­ings were like “rap lyrics” and were pro­tected as free speech.

Roberts said it was an er­ror for the judge to per­mit the jury to con­vict Elo­nis based only on how his posts would be viewed by a rea­son­able per­son, a stan­dard used in civil, not crim­i­nal, cases. The de­fen­dant has to be aware that his rants were true threats, he said.

A de­fen­dant can be con­victed if he “trans­mits a com­mu­ni­ca­tion for the pur­pose of is­su­ing a threat or with the knowl­edge that the com­mu­ni­ca­tion will be viewed as a threat,” the chief jus­tice said.

While agree­ing with the out­come, Jus­tice Sa­muel A. Al­ito Jr. faulted Roberts and his col­leagues for hand­ing down a rul­ing that de­cides very lit­tle.

“This case is cer­tain to cause con­fu­sion and se­ri­ous prob­lems,” Al­ito wrote in a con­cur­ring opin­ion. The rul­ing does not clar­ify what must be proven to win a con­vic­tion, he wrote, but in­stead, “at­tor­neys and judges are left to guess.”

In dis­sent, Jus­tice Clarence Thomas said that Elo­nis’ “gen­eral in­tent” was clear and that his con­vic­tion should have been up­held. He also faulted the court for is­su­ing a hazy opin­ion. “Our job is to de­cide ques­tions, not cre­ate them,” he said.

The ACLU’s Legal Direc­tor Steven Shapiro praised the rul­ing. It “prop­erly rec­og­nizes that the law for cen­turies re­quired the gov­ern­ment to prove crim­i­nal in­tent be­fore putting some­one in jail,” he said. “The In­ter­net does not change this long-stand­ing rule.”

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