Robert Barnes has this report in the WaPo on the oral argument in the Facebook threats case, Elonis v. United States.
As Bill noted earlier, I did a teleforum for the Federalist Society on the case. It should be available as a podcast tomorrow. We will post a link here then.
One thing that is clear from the argument is that counsel for Elonis abandoned the position that a subjective purpose to intimidate is constitutionally required. The mental state argument is about what kind of knowledge is required -- knowledge that the statement would be perceived as a threat, knowledge of a grave risk it would be so perceived (i.e., recklessness), or just knowledge of what the statement said, combined with an objective determination that a reasonable person would see it as a threat.
As Bill noted earlier, I did a teleforum for the Federalist Society on the case. It should be available as a podcast tomorrow. We will post a link here then.
One thing that is clear from the argument is that counsel for Elonis abandoned the position that a subjective purpose to intimidate is constitutionally required. The mental state argument is about what kind of knowledge is required -- knowledge that the statement would be perceived as a threat, knowledge of a grave risk it would be so perceived (i.e., recklessness), or just knowledge of what the statement said, combined with an objective determination that a reasonable person would see it as a threat.
Leave a comment