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“Freedom to offend, but not to assault” by Jonathan Emord


By Attorney Jonathan Emord, Author of “The Rise of Tyranny” and “Global Censorship of Health Information” and “Restore The Republic
December 15, 2014

 When construed in accordance with its plain and intended meaning, the First Amendment disarms government of any power whatsoever over speech and press, but sometimes speech exceeds the realm of communication and merges with criminal acts in the form of fraud, conspiracy, or assault. When that merger with action takes place, the law can punish the crime without proscribing the speech. In other words, those who say the very same words without evidence of an intent to effectuate fraud, conspiracy or assault remain blameless under the law, free to speak even though their speech is vile. Because the state is quick to prohibit speech that offends those in power, the federal courts are essential guardians of the First Amendment, needed as an independent check to ensure that speakers are not punished in the absence of proof of a specific intent to commit a crime. The object of law is thus against the crime, not the speech per se, as the intent to do harm becomes the basis for arrest. The case of Elonis v. United States now before the United States Supreme Court calls upon the Court to reaffirm this distinction and avoid allowing the state to criminalize speech that offends but does not rise to the level of criminal actions.

[pullquote align=”left|center|right” textalign=”left|center|right” width=”30%”]The statements made by Anthony Elonis against his estranged wife Tara and others are reprehensible and frightening to Tara and her children, but there is no evidence in this case that Anthony Elonis took a single step to effectuate the threats he made. [/pullquote]While sufficient to alert authorities to monitor Elonis’s movements, absent proof that he intended to effectuate the threats, his speech is void of that link to action that must be the basis for arrest if we are to preserve a free society. Consistent with the First Amendment, Elonis’s vile words alone do not justify the deprivation of liberty in the form of the 44 month prison sentence he received.

Much as we rightfully loath speech which places others in fear, the inherent subjectivity of speech denies us a credible basis for assuming the vile words more than sick prose until that moment arises when the speaker evidences a specific intent (either by purchase of a weapon or ammunition, tracking of a victim (stalking), or articulation of clear steps by which he or she will bring about injury to the victim). Rants that are ugly, threatening, or vulgar may cause intended victims to experience fear, but until such time as a specific intent to commit a crime is manifested, those repulsive statements still fall within the protective compass of the First Amendment and deny government the power to arrest the speaker. Instead, victims of such abuse should notify law enforcement of the threats and the need for surveillance, should become armed for self-defense, should obtain security systems, etc., but until such time as a specific intent to harm is uncovered, government must not make an arrest. Arrests made without evidence of intent create a broad chilling effect on those who would otherwise engage in the often robust, and sometimes hostile, communication about public men and measures, causing those who would speak critically of government, officials, and others to choose self-censorship out of fear of restraint over participation in the evolution of dynamic public debate.

Given the content of Elonis’s rants on Facebook, he deserved close surveillance by authorities who, upon the basis of those rants, should have obtained a warrant to monitor his every move and endeavor to discern whether he intended to do his estranged wife or others harm.

The Elonis case will determine whether a conviction for threatening another person under 18 USC Section 875(c) can be based on the reaction of the victim (whether he or she felt threatened) rather than on proof of the accused’s subjective intent to threaten. If the Court holds reaction a sufficient gauge, we will be thrown back into an era akin to that which prevailed during the Salem witch trials, when the fear and angst expressed by little girls at who they suspected to be witches led authorities to make arrests and execute the innocent. If, instead, we rest the law on proof of the speaker’s specific intent, we keep in place that restriction on government action against the right to speak which is at the core of the First Amendment. We instead demand proof of steps toward effectuation of threats, which removes the federal courts from the speculative realm of guessing if threats are mere rants or are genuinely intended to be effectuated. When we demand proof of such steps, we rest the law upon the more secure footing of action incident to crime which action, if left unchecked, leads to harm. The law then focuses upon the evidence of the action rather than upon the content of the speech alone, thus ensuring that content alone never becomes the basis for legal proscription.

© 2014 Jonathan W. Emord – All Rights Reserved