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Separation of Church and State, Then and Now

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There was a point in our history when it was accepted that there is, and ought to be, a pretty clearly defined separation between church and state.  The Framers thought one Church of England was enough.  Almost all of them were Christian, but did not want religion, theirs or anyone else's, thrust upon others.

Liberals were avid fans of this view of things  --  until they found out that the opposite view could advance their agenda.

My, how times do change.
Is it a crime for a governor to threaten to veto a funding bill because he does not believe the head of the office being funded can be trusted to use the money appropriately?  Of course not.  We elect governors and other officials to make such judgments.

Yesterday, the Texas Third Court of Appeals threw out one of the charges brought against former Governor Rick Perry.  This WSJ editorial summarizes the case:

A special prosecutor in notorious Travis County essentially charged Mr. Perry for exercising his constitutional right to oppose and veto an act of the legislature. Mr. Perry threatened to veto a funding bill for the Travis County District Attorney's Public Integrity Unit unless D.A. Rosemary Lehmberg resigned. She had been arrested and pleaded guilty to drunk driving, but she refused to resign and Mr. Perry followed through with the veto. The charges boil down to criminalizing routine political debate and controversies.
The procedural mechanism invoked by Perry is a pretrial writ of habeas corpus.  Under Texas case law, this procedure can only be used for facial challenges to statutes, not "as applied" challenges.  The Court of Appeal held that the Coercion of Public Servant statute was unconstitutional on its face.  It regulates speech, and its prohibition of threats is not limited to "true threats" within the meaning of the U.S. Supreme Court cases on that point.

Perry's challenge to the charge of Abuse of Official Capacity is not cognizable in this proceeding, so that one will have to be thrown out at some point down the line.

Elonis Teleforum Podcast

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The Federalist Society Teleforum on the Facebook threats case, Elonis v. United States, previously noted here, is now available as a podcast.

The speakers are John Elwood, who argued the case for Elonis in the Supreme Court, and CJLF Legal Director Kent Scheidegger, who wrote an amicus brief supporting the government.

Teleforum on Elonis

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The Federalist Society has a teleforum today on Elonis v. United States:


On Monday, June 1, the U.S. Supreme Court overturned the conviction of Anthony Douglas Elonis, who was prosecuted under a 1939 law prohibiting the communication of threats for allegedly threatening his estranged wife via Facebook. Has the Supreme Court clarified the legal status of violent speech on the internet, or merely added to the confusion? Our experts will discuss the opinion and its implications.

  • John Elwood, Partner, Vinson & Elkins LLP
  • Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

Call begins at 3:00 p.m. Eastern Time.

That's noon here on the Left Coast.

John argued the case for Elonis in the Supreme Court.  I wrote an amicus brief supporting the government.

The call-in number is 888-752-3232.  No other code is required.  We should have time for questions.  If you miss the live call but still want to listen, I expect the FedSoc will post it as a podcast in a few days.
Peter Hall of the Allentown Morning Call has this story on the Elonis case.  The story includes this nugget:

The U.S. Attorney's Office in Philadelphia was reviewing the decision and considering its options, including a "likely retrial" for Elonis, First Assistant U.S. Attorney Louis Lappen said Monday in a statement.
And this one:

Elonis served 44 months in federal custody from his arrest in 2010 until his release in February 2014. He is again behind bars after being charged by Freemansburg police in April with assault and harassment for allegedly throwing a metal pot at his girlfriend's mother.
Even though he has already done the time, it is important that the conviction remain on this sleazoid's record for the purpose of recidivist sentencing.

Why Did Elonis Take Six Months?

Elonis v. United States, the subject of two earlier posts today, was argued December 1, 2014, and decided today, exactly six months later.  The actual decision is only that the "reasonable person" test for what is a threat, in use in all but two of the federal circuits, is insufficient as a matter of statutory interpretation.  The actual test is undecided.  The requirements of the First Amendment in this area are undecided.

And this took you six months to write, Mr. Chief Justice?

No, of course it didn't.  The Court is famously secretive about its internal deliberations, but I just have to believe that something far more significant had been the subject of much debate, but the author of that broader opinion could not put together a majority for it.  So, perhaps the decision was that a narrow but controlling opinion that does not settle enough is better than a fractured multi-opinion decision that leaves everyone scratching their heads and perhaps settles nothing at all.

I don't think it was that hard a case.  The widely accepted "default" rule of interpretation from the Model Penal Code* is that when a criminal statute has no express mental element, then either purpose, knowledge, or recklessness will do.  Given that the Court has resolved long ago that recklessness is sufficient for First Amendment purposes, even in criminal cases (Garrison v. Louisiana (1964), cited in my brief and Justice Alito's opinion), the doctrine of constitutional avoidance provides no basis for deviating from the standard rule.

If the Court really feels it needs more briefing on this point, it should grant rehearing (whether the Government asks it to or not), take more briefing, and schedule reargument for next October.
Brent Kendall has this story in the WSJ on the Elonis case, noted earlier here. Included is this remarkable passage:

"We're pleased that the Supreme Court saw the case for what it was: A criminal conviction for a 'crime' of speech based on only a showing of negligence," Elonis lawyer John Elwood said in a written statement. "We are confident Mr. Elonis will be vindicated" when the case returns to the lower courts, he said.
Are you serious, John?  Under the standard you conceded at oral argument -- knowledge that the statement would be perceived as a threat -- your client is stone cold guilty.  Unless you get a jury of total loons, they are going to have no difficulty at all concluding that he had to know that his revolting threats would be perceived as such.
The U.S. Supreme Court today decided the Facebook threats case, United States v. Elonis.  Unfortunately, the Court left unanswered two major questions -- one on the required mental state for the offense and the other on the limits of the First Amendment.

Elonis made statements on his Facebook page regarding his wife and others that, in context, most reasonable people would regard as threats.  The jury was instructed on a "reasonable person" test, in accordance with the overwhelming weight of authority, and found him guilty.

Citing a Ninth Circuit case, Elonis argued that he could only be convicted if he subjectively intended the statements to be threats, regardless of how obviously they are threatening.  Today's opinion, citing the oral argument transcript says, "There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat."  But that certainly was disputed prior to the oral argument.  Elonis was going for only the first part, what the Model Penal Code calls "purpose" as distinguished from "knowledge."  Under that view, a person could make the most explicit threats, scaring the hell out of the victim, and then defend on the basis he was "just kidding."  Attacking that extreme view was the primary reason CJLF filed a brief in this case.  The Court rejects it today.

A third mental state that the Model Penal Code considers sufficient for criminal liability is "recklessness."  Even if the maker of a threatening statement does not subjectively know it will be perceived as a threat, does he violate the statute if he acts with reckless disregard of that possibility?  That important question was briefed, albeit briefly, in Part I B of our brief.  The parties did not brief it, though, so the Court declines to rule on it and on the First Amendment question of whether recklessness is constitutionally sufficient. 

Justice Alito, concurring in part and dissenting in part, nails it:

Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.

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.

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