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The First Amendment Inside-Out

According to its initial assessment, the University of Michigan thought that freedom of speech did not include screening the Oscar-nominated movie, "American Sniper," because a group of Muslim students preposterously claimed that the showing would create an "unsafe" environment.  I blogged about it here. After a public outcry  -- and only after  --  did University administrators decide the movie could be shown after all.

But free speech is not entirely moribund.  It lives on in the form of rioting, and, worse, the official invitation to riot.

Harken unto these words from the mayor of Baltimore, whose city, as I type, is becoming engulfed in an anti-police riot.  (I'm taking this story, not from any "right wing" source, but from CBS News in Baltimore):

I made it very clear that I work with the police and instructed them to do everything that they could to make sure that the protesters were able to exercise their right to free speech," [Mayor] Rawlings-Blake said. "It's a very delicate balancing act. Because while we try to make sure that they were protected from the cars and other things that were going on, we also gave those who wished to destroy space to do that as well.

Q:  What happens when a city invites a riot in the name of "free speech"?

A:  It gets a riot.  Whether it gets any speech, I don't know.

Waiting for Elonis

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The U.S. Supreme Court decided two civil cases today.  United States v. Kwai Fun Wong, No. 13-1074 deals with equitable tolling, an issue that comes up regularly in habeas corpus cases.

Still no decision on the Facebook threats case, Elonis v. United States.  That case was argued in December, and it is the only case from that session not yet decided.  Playing the SCOTUS Sudoku game, we see from the SCOTUSblog statistics page that Chief Justice Roberts is the only one not to write a majority opinion yet from that session.  (The June case was decided together with Wong today, written by Justice Kagan.)  So it's a good bet that the Chief is writing Elonis.

Does that give us a clue how the case will be decided?  Not really.  He was probing both sides at oral argument.  In First Amendment cases generally he has been pretty much down the middle.  He has written opinions in favor of First Amendment claims in cases on funeral protests and crush videos, but he has also written opinions against such claims in cases on school speech and terrorism support.  That last one gives me some hope here.  We are dealing with speech that involves genuine danger of grave physical harm to a person.  That makes Holder v. Humanitarian Law Project and Elonis different from all the other cases.

Still, we will have to wait and see.  Maybe next week.
Kevin Reed, a magistrate judge in Memphis, is one of the people who sees the ugly reality of domestic violence all the time.  He has this op-ed in the WaPo, commenting on Elonis v. United States, the Facebook threat case.

As a magistrate judge, I've presided over hundreds of protective order hearings in domestic abuse cases. And I can tell you that no abuser intends to truly threaten when he promises to kill his victim -- at least not by the time he's made it to court.

Victims come to court every day armed with heinous voice-mail messages, text messages or Facebook posts from abusers threatening them with bodily harm or worse. The identity of the speakers of these troubling statements is rarely in question. But when confronted, these abusers are always dismissive. According to them, such statements aren't real threats at all. They are just a way to express anger about a particular situation -- loose talk designed to let the target know how upset they feel. An overt statement to kill someone on sight is explained away as an atypical outburst that meant nothing -- a position they believe is supported by the living-and-breathing victim's presence in the courtroom.
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No More Big Talk and Furrowed Brows

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Today's WSJ has an editorial titled, "Islamist Terror in Paris:  Jihadists target Western principles of free speech and religious pluralism."  It describes yesterday's slaughter, then notes:

Wednesday's massacre, following a long string of plots foiled by police in the U.K., France and elsewhere, is a reminder that jihadism isn't a distant Middle Eastern phenomenon. There will be many more such attempts at mass murder, and authorities in the U.S. and Europe need broad authority to surveil and interrogate potential plotters to stop them.

This offends some liberals and libertarians, but imagine the restrictions on liberty that would follow if radical Muslims succeed in blowing up a soccer stadium or half a city. Men willing to execute cartoonists in Paris and 132 children at point-blank range in Peshawar in the name of religion won't shrink from using more destructive means to impose mass casualties. Better to collect metadata and surveil some people now than deal with public demand for mass Muslim arrests or expulsions after a catastrophe.

Wednesday's attack also demonstrates again that violent Islam isn't a reaction to poverty or Western policies in the Middle East. It is an ideological challenge to Western civilization and principles, including a free press and religious pluralism. The murder of Charlie Hebdo cartoonists is merely the latest evil expression of a modern arc of Islamist violence against Western free speech that stretches back to Ayatollah Khomeini 's 1989 fatwa calling for the killing of novelist Salman Rushdie. 

It's appalling that more people in this country did not understand before yesterday what the stakes are in this struggle.  Instead, we made excuses for butchers, doubted our right and need to act, and lashed out at our own military, intelligence apparatus, and police.  None of those agencies should be or is above scrutiny.  But it's past time for looking-down-the-nose libertarians and holier-than-thou liberals to get on board with what is needed to defend the basics of Western civilization.  If they prefer not to, that is their right in a free country, but their reality-challenged lectures about what they leave it to us rubes to do to protect ourselves (and them) should henceforth be ignored.

Elonis Podcast, Claremont Edition

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My teleforum on the Elonis case with John Eastman of the Claremont Institute is now available as a podcast.  It's about 10 minutes.
The Claremont Institute's Center for Constitutional Jurisprudence will sponsor a teleforum on Friday at 1:00 p.m. EST on three cases argued before the Supreme Court this month.  The criminal case in the group is Elonis v. United States, the Facebook threats case, to be discussed by yours truly.

Also on the case will be Prof. Anthony Caso of Chapman University (formerly with Pacific Legal Foundation) discussing the Amtrak regulatory delegation case, and Karen Harned of the National Federation of Independent Business, discussing the notice and comment requirements for an administrative agency to change its interpretative regulations.  Because of these two cases, the forum is titled, "Will The Court Rein In The Out Of Control Bureaucracy?"  Dr. John Eastman will lead the discussion.

You can register your phone number here, and they will call you, or you can point your browser here, and listen via webcast.

Elonis Teleforum Podcast

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My FedSoc Teleforum on the Elonis Facebook threats case argument yesterday is now available as a podcast.

Facebook Threats Argument

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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.
Kent wrote about the Facebook threat case, Elonis v. United States, in this post. The case was argued before the Supreme Court this morning, and Kent will describe and analyse the argument in a Federalist Society teleforum broadcast this afternoon at 4 pm Eastern Time.  The call-in number is 888-752-3232.

Facebook Threats Argument Next Week

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Elonis v. United States, the Facebook threats case, will be argued next week.  We filed our brief last October, and I wrote this post the same day.

Amy Howe has this "plain English" post on the case at SCOTUSblog.  She noted it is unlikely that the Justices are much familiar with Facebook and wonders if that will affect the case.  It shouldn't, in my opinion.  The definition of a prohibited threat should not vary with the medium.  The fact that people rant all the time on the internet does not warrant extending First Amendment protection when rant crosses the line to threats. 

A couple of amicus briefs supporting Elonis take the position, in essence, that the routine debasement of speech in our society in media such as online posting and gangsta rap are a reason to take a more expansive view of First Amendment protection of threats.  If this downward spiral of our society has any effect at all on the decision, it should be in the other direction, in my opinion.  We have gone way too far in letting it all hang out and need to tuck some of it back in.

A good example of the ill effects of extreme disinhibition is SCOTUSblog itself.  That blog used to have comments, and I enjoyed commenting there, exchanging views with thoughtful, intelligent, informed people, many of whom disagreed with me.  But the comment section turned into a cesspool, as the comments of so many blogs do.  They tried requiring people to use their real names, and that helped but not enough.  Finally they axed the comments altogether because they dragged down the quality of the blog.  The rudeness of a few ruined the medium for those of us who wanted to exchange views at a refined level.

Today the Ninth Circuit decided Doe v. Harris, No. 13-15263.  The opinion by Judge Bybee begins:

California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code §§ 290.012, 290.015. The Californians Against Sexual Exploitation ("CASE") Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide "[a] list of any and all Internet identifiers established or used by the person" and "[a] list of any and all Internet service providers used by the person." Id. § 290.015(a)(4)-(5). The Act also requires registered sex offenders to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider ("ISP"). Id. § 290.014(b). Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.
Suppose someone who is angry at you says he is going to hunt you down and kill you.  Suppose further that all of the circumstances of the statement are consistent with him really meaning it.  If the police go and arrest him for making criminal threats, and he says "oh, I was just kidding," is that a defense?  If the jury believes him, or if the prosecution is unable to disprove the claim beyond a reasonable doubt, does he walk?  Does the First Amendment require this result?  That is the issue before the United States Supreme Court in Elonis v. United States, No. 13-983.

Police Prudence or Hecklers' Veto?

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One of the tougher issues in First Amendment law is deciding when protected speech turns into unprotected incitement.  Police are often called upon to make that judgment.  In this case, they found incitement, moved the protesters out, and threatened them with arrest for disorderly conduct.  (No charges were actually brought in court, however).

A Sixth Circuit panel found that the district court got it right when it held for the police. On the circumstances of this case, I think the cops got it wrong, for the reasons explained by dissenting Judge Eric Clay (appointed by Bill Clinton).

To allow a menacing mob to trump peaceful (although very annoying) protesters' First Amendment rights is to allow the "heckler's veto," and that in turn will lead us to a place a free country should never go.

Sometimes, You Forget How Bad They Can Be

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But Ed Whelan of NRO's  Bench Memos reminds us:

2005--A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the "victim") to wear buttons bearing the deceased's photograph. (The panel will later substitute in a slightly different version of its opinion.)

In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit.

How far some judges will go to re-invent the Constitution as a cudgel of callousness toward the families of murder victims is mind-bending. 

Academic Robbery

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Eugene Volokh has this post at his eponymous conspiracy on a bizarre incident at the University of California at Santa Barbara.  Dr. Mireille Miller-Young -- an associate professor with UCSB's Feminist Studies Department -- was offended by an anti-abortion demonstration with graphic images.  (CJLF takes no position on the underlying controversy, BTW.)

According to the police report,

Miller-Young said that she "just grabbed it [the sign] from this girl's hands." Asked if there had been a struggle, Miller-Young stated, "I'm stronger so I was able to take the poster."

Miller-Young said that the poster had been taken back to her office. Once in her office, a "safe space" described by Miller-Young, Miller-Young said that they were still upset by the images on the poster and had destroyed it. Miller-Young said that she was "mainly" responsible for the posters destruction because she was the only one with scissors.

The definition of robbery in California, unchanged since 1872, is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (Penal Code § 211.)

Miller-Young confessed to taking the property, and the "I'm stronger" statement effectively confesses the "force" element. (See 2 Witkin & Epstein, California Criminal Law, Crimes Against Property § 99.) This is not only a felony, but a "violent" one. (Penal Code § 667.5(c)(9).)

"Miller-Young said that she did not feel that what she had done was criminal."

In my view, one of the greatest problems in our society today is the extent to which our young people are being taught by persons utterly devoid of common sense. Miller-Young should be convicted of robbery. Whatever direct consequences the court may impose, the collateral consequence should be that she is fired and never teaches in this state (or hopefully any other) again.

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