Can You Say What You Want With Free Speech?

As both a parent of teenagers and as a criminal defense attorney, I sometimes make analogies in my discussions with my children. For example, if my daughter were to slap my son on the arm, I would explain how in Johnson County, Kansas that is punishable by up to 6 months in jail as it violates the domestic battery statute. While they might roll their eyes, it is a reality is such an aggressive prosecution oriented forum such as Olathe, Overland Park, and Lenexa. I make similar analogies if they were to yell stupid threats to each other. I explain how a criminal threat can be a felony under Kansas statute. This then leads to Constitutional "First Amendment" discussions.

Currently, the United States Supreme Court is addressing this very issue in Elonis v. United States. It is already decided law that free speech does not allow threats of death or serious harm. However, a person is allowed to make verbal attacks that don't amount to an actual true threat. Therefore, the argument is such cases is whether a defendant's remark was just ranting or an actual true threat. Elonis is arguing that the government is required to prove that he subjectively intended to state a true threat. The government is arguing that all they have to prove is that his statements could be reasonably interpreted as a true threat.

In Elonis, the defendant was found guilty at trial, but it has been appealed to the Supreme Court of the United States. He made several statements which gave rise to his conviction.

On Facebook he said

  • ""Fold up your [protective order] and put it in your pocket. Is it thick enough to stop a bullet?" This was directed to his wife after she obtained a legal protective order.
  • "enough elementary schools in a ten-mile radius to initiate the most heinous school shooting ever … the only question is which one."
  • "the next time you knock, [I will] touch the detonator in my pocket and we're all going boom." This one was directed to the FBI after they interrogated him at his house.

Clearly, these statements could be reasonably interpreted as a true threat. However, Elonis and his lawyer is puporting that the government must prove beyond a reasonable doubt that he actually subjectively intended them as true threats. His argument is that if he is found guilty, then it sends a message that you can be criminally liable for mere negligent speech and that upholding his conviction would have a chilling effect on free speech rights.

It will be interesting to see what SCOTUS does in this case. Rather than make a blanket holding regarding free speech in general, the Court might simply rely on the specific criminal threat statute of the state and what is or isn't required under the specific statute of the state. In other words, SCOTUS might simply punt and say that in this case, the actions did or did not meet the requirements of the specific statute. In such an event, the actual Constitutional free speech protections won't be directly addressed. We'll see as the Supreme Court is currently deciding this case.

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