Category Archives: First Amendment

WASHINGTON -- Anthony Elonis claimed he was just kidding when he posted a series of graphically violent rap lyrics on Facebook about killing his estranged wife, shooting up a kindergarten class and attacking an FBI agent.

But his wife didn't see it that way. Neither did a federal jury.

Elonis, who's from Bethlehem, Pennsylvania, was convicted of violating a federal law that makes it a crime to threaten another person.

In a far-reaching case that probes the limits of free speech over the Internet, the Supreme Court on Monday was to consider whether Elonis' Facebook posts, and others like it, deserve protection under the First Amendment.

Elonis argues that his lyrics were simply a crude and spontaneous form of expression that should not be considered threatening if he did not really mean it. The government says it does not matter what Elonis intended, and that the true test of a threat is whether his words make a reasonable person feel threatened.

One post about his wife said, "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."

The case has drawn widespread attention from free-speech advocates who say comments on Facebook, Twitter and other social media can be hasty, impulsive and easily misinterpreted. They point out that a message on Facebook intended for a small group could be taken out of context when viewed by a wider audience.

"A statute that proscribes speech without regard to the speaker's intended meaning runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed," said a brief from the American Liberties Union and other groups.

But so far, most lower courts have rejected that view, ruling that a "true threat" depends on how an objective person perceives the message.

For more than four decades, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment. But the court has been careful to distinguish threats from protected speech such as "political hyperbole" or "unpleasantly sharp attacks."

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Supreme Court weighs limits of free speech over Internet

The Satanic Temple is in a battle with the state of Florida. Last holiday season, the Department of Management Services, an arm of the state government, allowed religious groups to construct displays of faith in the rotunda of Tallahassee's Capitol Building. First a Christian group erected a nativity scene that endorsed Christianity. Then an atheist group hung a winter solstice banner celebrating the Bill of Rights and freedom from religion. Inspired, another atheist built a Festivus pole made of beer cans, and the Church of the Flying Spaghetti Monster added a small pile of holy noodles.

Under current First Amendment law, the Capitol had no ability to turn down any of these groups; once the government opened the door to one religion, it had to let them all in.

But when the Satanic Temple applied to erect a display featuring an angel falling into a pit of fire, state officials turned it down. The display, they explained, was "grossly offensive during the holiday season." Now, with Christmas around the corner, the temple is reapplying, asserting its constitutional right to include its display alongside the others. And this time, it's bringing a legal team.

How did the Florida Capitol become the center of a constitutional showdown launched by Satanists? Surprisingly, the fault lies squarely with the U.S. Supreme Court's most conservative justices. In their quest to let the government endorse and sponsor mainstream religion, they accidentally granted groups like the Satanists and the Pastafarians a constitutional right to force the government to advertise their beliefs.

The seeds of the current Satanist showdown were planted in 1984, when the city of Pawtucket, Rhode Island, argued that it had a right to fund blatantly religious Christmas displays using taxpayer money. Five conservatives on the Supreme Court agreed, holding that the First Amendment (which bars the government from making any laws "respecting an establishment of religion") did not forbid the city from financing religious displays.

Writing for the court, Chief Justice Warren Burger ruled that the image of Christ in a manger was merely a "celebration of a public holiday with traditional symbols" and thus served "legitimate secular purposes." (When the dissenting justices pointed out that the court had placed deeply holy figures on the same spiritual level as "Santa's house or reindeer," Burger scoffed, "Of course this is not true." He did not elaborate further on his reasoning.)

Five years later, a similar issue reared its head after the city of Pittsburgh placed religious displays including a Hanukkah menorah and a nativity scene in the Allegheny County Courthouse. A badly splintered court ruled that the nativity scene endorsed Christianity in violation of the Establishment Clause, because an angel held a banner that proclaimed "Gloria in Excelsis Deo" ("Glory to God in the Highest").

The majority was also troubled by the scale of the nativity display; it was placed on the "grand staircase" of the courthouse, lending the impression that the city held it in special esteem. Six members of the court, however, ruled that the menorah didn't unconstitutionally endorse religion. Placed outside the courthouse, next to a Christmas tree and a sign saluting liberty, the menorah was, in the eyes of the court, merely a celebration of "the winter-holiday season, which has attained a secular status in our society."

The implicit message of the Allegheny case was that cities can allow, and even finance, religious displays on government property as long as the city doesn't appear to be favoring one religion over another. In most cities, these rulings have led to an all-comers policy; if officials permit every applicant to construct a religious display, after all, they can hardly be accused to preferring a specific religion. For a while, the policy was tacit and loose. Most cities probably assumed that they retained the ultimate right to refuse a religious display that strayed too far from their sense of decency.

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Bound for hell: A satanic display is likely to be placed in Florida's Capitol

First Amendment to the U.S. Constitution
Jeffrey Rosen of the National Constitution Center in conversation with Walter Isaacson of the Aspen Institute.

By: The Aspen Institute

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First Amendment to the U.S. Constitution - Video

Many people don't know where courts draw the line on what constitutes free speechor what they mean by a "true threat."

In a 2003 case, the Supreme Court ruled that Ku Klux Klan burnings are sometimes but not always protected speech. (Rainier Ehrhardt/Reuters)

Not long ago, a dissatisfied reader emailed that he had enough guns to stop people like me. I emailed back to ask whether he was threatening me.

The reply: I'm not stupid enough to telegraph genuine ill intent.

On Monday, the Supreme Court will hear a case involving the question of when a seemingly threatening communication (this one on Facebook, not email) can be a crime. Lets clear up some confusion, shared by my correspondent above, about what threats are and why they can be punished.

The case is Elonis v. United States. Anthony Elonis lived in Lower Saucony Township, Pennsylvania. Until 2010, he was married with two children and worked at a nearby theme park. In May 2010, his wife left him, taking their two children. Not long after that, he was fired because of multiple complaints of on-the-job sexual harassment (for example, a female coworker alleged that he found her alone in the office at night and began to undress).

He turned to Facebook. About his former coworkers, he posted: I have sinister plans for all my friends and must have taken home a couple [of keys]. About his ex-wife, he posted: Im not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. When she got a restraining order, he posted, Ive got enough explosives to take care of the state police and the sheriff's department and Im checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined ... The only question is ... which one? FBI agents came to his door; he posted his fantasy of killing one female agent: Pull my knife, flick my wrist, and slit her throat Leave her bleedin from her jugular in the arms of her partner. He was convicted in federal district court of five counts of transmitting in interstate commerce (here, the Internet) any threat to injure the person of another.

Free Speech Isn't Free

Elonis argued that, under the First Amendment, the government had to prove that he had a subjective intent to threaten. He said he lacked that, in part because some of his posts echoed words by rapper Eminem. The court of appeals held instead that the statute only requires that a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm.

Lets break that down carefully. Elonis argues that the government must prove beyond a reasonable doubt that he was actually thinking, This message will terrify the person it refers too, and I want that. The government says that it must only prove that a reasonable person would have thought it would terrify.

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When Does the First Amendment Protect Threats?

Book Review | Speech, Conduct, And The First Amendment By Howard Schweber
BOOK REVIEW OF YOUR FAVORITE BOOK =--- Where to buy this book? ISBN: 9780820452951 Book Review of Speech, Conduct, and the First Amendment by Howard Schw...

By: read books it #39;s what I like

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Book Review | Speech, Conduct, And The First Amendment By Howard Schweber - Video

Craig Smith, a California State University, Long Beach, communication studies professor and former presidential speechwriter, received two national awards Nov. 21.

The director of CSULBs Center for First Amendment Studies was honored at the National Communication Associations (NCA) 100th annual convention in Chicago.

Smith said he is now a third time recipient of the Robert ONeil Award for outstanding scholarship on First Amendment issues.

I wrote the award-winning paper with my centers research director professor Kevin Johnson, who was once a student of mine here, Smith said. So I am doubly proud of that award.

Smith also accepted the Gronbeck Award for his work in interpreting and addressing political communication issues. The award, Smith said, is the result of his latest book, Confessions of a Presidential Speechwriter, published last year in February by Michigan State University Press.

In his book, he describes the time spent as a speechwriter for President Gerald R. Ford and later for George H.W. Bush, Smith said. He said he recounted his history involving Freedom of Expression. According to his books overview, Smith wrote about meeting Robert Kennedy and Richard Nixon and advising Gov. Ronald Reagan. His book explores his time in Washington D.C., when he founded the Freedom of Expression Foundation and became its president.

The Gronbeck Award was named after Bruce Gronbeck, who died in September at 73 years old.

Gronbeck was a communications professor at the University of Iowa and was recognized as a scholar of rhetoric and media, according to the UI website. He received several awards including the Outstanding Mentor Award from the university as well as the NCA Mentor Award. He is responsible for mentoring 65 doctorate candidates at UI.

I knew Bruce for a long time since both of us were in political communication, Smith said. Bruce published a lot of articles and books on political communication, and I think thats why the National Communication Association decided to honor him by naming this particular award after him.

Smith said he recalled a Facebook post from Gronbeck on Sept. 9.

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Professor Craig Smith Wins National Awards

(Part One) Gadsden County First amendment Audit
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(Part One) Gadsden County First amendment Audit - Video

Supreme Court to hear case on social media and First Amendment rights
Supreme Court to hear case on social media and First Amendment rights.

By: 41 Action News

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Supreme Court to hear case on social media and First Amendment rights - Video

Published November 26, 2014

PHOENIX An appeals court has thrown out a ruling that barred the public from watching the first witness called by Jodi Arias at the convicted murderer's sentencing retrial.

The decision Wednesday by the Arizona Court of Appeals overturns the Oct. 30 ruling by Maricopa County Superior Court Judge Sherry Stephens and suggests that the previously unidentified witness may have been Arias herself.

Stephens had said the ruling was necessary because Arias' first witness, whom the judge refused to publicly identify, wouldn't testify unless the hearing was closed to the public. Some of the testimony by Arias' first witness was conducted in private. The Arizona Republic and three Phoenix TV stations KPNX, KPHO and KTVK protested the closure of the courtroom, arguing the First Amendment allows reporters to attend the trial.

Arias was convicted of murder last year in the 2008 death of former boyfriend Travis Alexander, but jurors deadlocked on whether she should be sentenced to life in prison or death. A new jury has been picked to decide her sentence.

The appeals court didn't offer an explanation in its ruling Wednesday at how it arrived at that decision. A more detailed ruling is expected in the future.

But the court suggested an answer to a question that stumped trial watchers: Who was the skittish witness who was allowed to testify in private?

The appeals court said Stephens order closed the courtroom to the public during "any testimony by Jodi Arias," though it's unclear whether the testimony was made by Arias herself or someone else on Arias' behalf.

"It underscores the importance of the public's right to attend criminal trials, particularly the testimony of a defendant in the sentencing phase of a capital trial," David Bodney, an attorney representing the news organizations, said of the ruling.

A call to Arias attorney Jennifer Willmott wasn't immediately returned Wednesday afternoon.

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Court throws out ruling that barred public from watching 1st witness called by Jodi Arias

In a ruling that is drawing sharp criticism from free-speech advocates, a Superior Court judge has ordered the Connecticut Law Tribune not to publish a story about a child custody case.

Judge Stephen Frazzini on Monday granted a motion filed in New Britain Superior Court by the mother of the three children involved in the case that sought to stop the Law Tribune from running the story.

Daniel J. Klau, the lawyer representing the Law Tribune, objected to the mother's motion, saying a prior restraint on the publication was a violation of the First Amendment. The information for the story, he said, was lawfully obtained by the Tribune. He declined to elaborate about the information.

"Prohibiting the publication of a news story is the very essence of censorship," Klau said. On Tuesday, he filed a motion asking the state's appellate court to stay the lower court's injunction.

"We certainly hope that the judges review the motion immediately and overturn the order or, at a bare minimum, grant us an immediate hearing in the appellate court next week, if not earlier," Klau said.

Klau said the judge's ruling, which Frazzini made orally from the bench Monday, and a transcript of the proceedings were sealed from public view as of Tuesday. He said he was barred from speaking about specifics of the judge's ruling, even with his own client. The Connecticut Law Tribune is owned by American Lawyer Media.

In an email statement Tuesday, Sandra Staub, legal director of the American Civil Liberties Union of Connecticut, called the ruling "alarming" and an infringement on free speech.

"The courts are supposed to protect speech, not prohibit it," Staub said. "Prior restraint is forbidden under the U.S. Constitution, with extremely narrow exceptions that do not apply in this case, and in our view is absolutely prohibited by the Connecticut Constitution."

A widely recognized exception is in cases that involve national security.

In a story on the Law Tribune's website posted Tuesday, Thomas B. Scheffey wrote that Monday's proceedings were held in juvenile court where the hearings are not usually open to the public.

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Judge Orders Law Tribune Not To Publish Story