- Professor Robert George, Princeton University
On December 8, 2014, the Tenth Circuit Court of Appeals heard arguments in three cases challenging the HHS contraceptive mandate, including Little Sisters of the Poor v. Burwell. The Little Sisters case has already been to the Supreme Court once when Justice Sotomayor gave the nuns an emergency injunction on December 31, 2013, and the full court gave them an injunction in January 2014. The Little Sisters returned to court on December 8 to challenge whether the government can force them to sign forms that would let the government and third parties use their plan to provide contraceptives.
Mark Rienzi is Senior Counsel at the Becket Fund for Religious Liberty, and an Associate Professor of Constitutional Law at the Catholic University of America. He argued on behalf of the Little Sisters and several other parties before the 10th Circuit, and he gave a report on the argument and the status of the challenges to the contraceptive mandate.
On December 1, 2014, the Supreme Court heard oral argument in Elonis v. United States. The question in this case is twofold. First, this case asks whether the First Amendment requires proof of the defendant’s subjective intent to threaten in order to convict someone of threatening another person under 18 U.S. C. § 875(c), or whether it is sufficient to demonstrate that a “reasonable person” would consider the statement to be threatening. The second question in this case is whether, as a matter of statutory interpretation, conviction of another person requires proof of the defendant’s subjective intent to threaten.
To discuss the case, we have Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation.
Anthony Douglas Elonis was convicted and sentenced to forty-four months in prison for a series of 2011 Facebook posts that prosecutors argued were in violation of a federal law making it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” In Elonis v. United States, argued on December 1, 2014, the Court will answer whether conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as both a First Amendment and a statutory interpretation issue. Anthony Elonis argues that his postings on Facebook were not “true threats” because he actually had no “subjective intent to threaten another person.” Several of his supporters allege that “genre of artistic expression through which a message is conveyed is relevant to a court’s evaluation of alleged threats,” and that Mr. Elonis’ posts, many of which identify him as an “aspiring rapper” and take the form of rap lyrics, are protected artistic expression. The government argues that Mr. Elonis’s statements were properly judged by two measures: first, did he make his statements intentionally (without regard to what he was thinking), and, second, would “a reasonable person” read the words used and their context as conveying to the target of the message that they would be injured or killed? Our expert offered his impressions of the oral arguments to a Teleforum audience.