Sticks & Stones but, Not Words

In a world that comedian Jerry Seinfeld bemoans as too “PC” (politically correct), last week the United States Supreme Court (USSC) finally clarified what is (or is not), criminally punishable, threatening speech, particularly, on the Internet.

Pat Merriman

By Pat Merriman

Dunn Co. State’s Attorney

In Elonis vs United States, Mr. Elonis (a Pennsylvania resident) challenged his convictions, under federal law, for the alleged crime of transmitting “in interstate commerce any communication containing any threat to injure the person of another.” Essentially, Elonis hated his ex-wife (who knew that divorce leaves a bad taste in one’s mouth) and used Facebook to get even with her by posting “self-styled rap lyrics containing graphically violent language and imagery” threatening his ex, his co-workers, state and federal law enforcement and, even a kindergar¬ten class. Say it isn’t so! Rapper E often “interspersed with disclaimers that the lyrics were fictitious.” Local cops sprang into action and interviewed Elonis, monitored his activities but, no actions, even after several weeks…just mean, angry, insulting words posted out there in cyberspace.

He was even fired for the activity after the estranged wife obtained a civil adult abuse order in state court but, the barrage of words continued unabated. In short, he was, it appears, by all accounts, a boorish jerk. But, enter the FBI who, not content to let local law enforcement deal with the problem, decided to make an example of Mr. Elonis. I guess the Obama Administration has all this free time on their hands now that drug offenses have been de-prioritized in Washington. Anyway, at his trial, he was convicted of 4 counts of the foregoing statute based on a “negligence” standard imposed by both the trial judge and the 3rd Circuit Court of Appeals who sustained the conviction. Something us state prosecutors have repeatedly warned is un-constitutional because merely being a jerk, albeit an offensive, negligent one, is not a crime under the Due Process and Equal Protection clauses. You actually have to, at least, attempt to actually DO something, or it ain’t a crime. Enter the US Supreme Court.

In a holding which finally put to rest the “scienter” (mens rea or culpable mental state) requirement to sustain a conviction under these “threat speech” type statutes, the USSC rejected the government’s arguments that negligence is the requisite mental state, i.e., if the victim “feels” threatened, that’s enough to put someone in jail. And, instead, has ruled that it “is the threatening nature of the communication, the mental state re¬quirement must apply to the fact that the communication contains an [actual] threat.” In other words, it’s not result-oriented, i.e., the recipient/subject of the message simply “feels” threatened because that is an arbitrary, subjective standard which is unconstitutional. Rather, it’s what a reasonable person who actually authored the message would intend to be threatening. The trial court had erroneously imposed the lower negligence standard (the same erroneous standard touted for the last 20 years by these anti-haters) as to how Elonis’ posts “would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal con¬duct requirement of awareness of some wrongdoing.” Nope, the Supreme Court said (consistent with its previous rulings on scienter) it’s the mental state of the hater not the hatee.

So, what’s the real point? Well, since I started my career in prosecution as the US Attorney’s law clerk, in KCMO, back in the Stone Age (1983-86), I have watched as some of our more sensitive citizens have come to believe that the criminal justice process is the best solution to every societal ill. My first mentor AUSA Whit Moody said it best, “For every wrong there is not always a right that can be conferred by the criminal law. And, twisting the criminal law to salve hurt feelings is persecution NOT prosecution.” In other words, part of life is having to deal with jerks and, one cannot either legally legislate (or prosecute) jerkiness out of the jerk. And, under the Free Speech clause of the First Amendment, sometimes, we have to listen to jerks as part of the free exchange of ideas. Sort of like CNN’s Anderson Cooper who continues to wrongly blame organizers like Jon Ritzheimer (part of the Draw Mohammed lampoonists) of “inciting” (causing) Muslim violence by drawing cartoons of the Prophet instead of the actual thugs who kill people who have published the drawings. Darn, sarcasm rears its ugly head again- -stop me before I rant again!

Guys, sorry, the price of freedom is a free exchange of ideas, even insulting ideas, and, if you think you have been wronged/ injured, you can still sue in civil court if the “speaker” crosses the line; but, the USSC has just unequivocally stated that the federal and state criminal prosecutors have to keep their noses out of it. Think this is a uniquely liberal, east coast phenomenon? Nope. Last year, in a strikingly similar case (one of several) a disgruntled tenant came up here to the Bakken for the “big income” and, apparently riled up a co-worker who, then, sent text messages which, for lack of a better definition, suggested that the recipient do the world a favor and either leave the Bakken or, well, just depart the planet. Certainly insulting and rude but, as I stated then, not criminal. Now, I’m not one to say, “I told you so”….well, OK, yes I am! And, unfortunately, my “victim” finally quit their job up here and moved elsewhere so they could “feel” safe. Another one of those Constitutional freedoms–freedom of association and to travel.

So, at the end of the day, the USSC has just stated, “thicken up that hide there fellas!” People who get divorces, say mean things about their ex-spouse, co-workers bad-mouth each other and, dark, gansta lyrics are well…arguably, music (to somebody) and not, per se, threats on someone’s safety. I don’t know how we all got along in this country for over 220 years without Big Daddy/ Mama/Brother trying to arbitrate public civility or discourse through criminal “threat speech” statutes but, I do know that the USSC has clearly said, you can’t be prosecuted based merely on a victim’s feelings. Oh, and by the by, even though Mr. Elonis can’t be prosecuted for being a jerk, he did throw a pot at another woman and, he is, at last mention, sitting in jail on STATE assault charges. Again, having a nasty mind is OK but, chucking a pot at someone’s melon is still assault. Common sense prevails! Let the pigeons loose!


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