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Freedom of Speech

The Facebook Threat Case -- Elonis v. United States - Podcast

Criminal Law & Procedure Practice Group Podcast
Kent S. Scheidegger December 02, 2014

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.

  • Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

How First Amendment Procedures Protect First Amendment Substance - Event Video

2014 National Lawyers Convention
Aaron H. Caplan, Robert A. Destro, Todd P. Graves, Alan B. Morrison, Eugene Volokh, David Stras, Erik S. Jaffe November 17, 2014

While the substance of constitutional rights is always important, it is often the procedures surrounding the protection and enforcement of those rights that give them teeth – or defang them.  From the landmark case of New York Times v. Sullivan to the recently decided Susan B. Anthony List v. Driehaus, the procedures required before one can burden speech, or raise a successful defense under the First Amendment, are critical to the effective scope of the constitutional right.  This panel will explore the various procedural safeguards applied – or not applied – in the context of the Freedom of Speech.  What level of proof is required before speech may be restricted based on an otherwise valid interest?  When will a private party have standing to challenge a restriction on speech that may not yet be final but that has immediate adverse consequences, such as requiring a party to defend an investigation or rebut a preliminary government finding in the midst of an election campaign?  What safeguards should exist in administrative processes, such as IRS tax exemption rulings, where discretion may be used to punish speech or otherwise favor one viewpoint over another?  These and other examples all illustrate that even where the substance of First Amendment rights is well established, procedural loopholes or protections can reduce or enhance the effectiveness of those rights.

The Federalist Society's Free Speech & Election Law Practice Group presented this panel on "How First Amendment Procedures Protect First Amendment Substance" on Friday, November 14, during the 2014 National Lawyers Convention.

Featuring:

  • Prof. Aaron H. Caplan, Loyola Law School, Los Angeles
  • Prof. Robert A. Destro, The Catholic University of America Columbus School of Law
  • Mr. Todd P. Graves, Graves Garrett LLC
  • Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, The George Washington University Law School
  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, University of California, Los Angeles School of Law
  • Moderator: Hon. David R. Stras, Associate Justice, Minnesota Supreme Court
  • Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC; and Chairman, Free Speech & Election Law Practice Group

Mayflower Hotel
Washington, DC

Under Indictment: Governor Rick Perry - Podcast

Criminal Law & Procedure Practice Group Podcast
John S. Baker, Jr. August 28, 2014

The recent indictment of Texas Governor Rick Perry has garnered huge press attention. In an unusual alignment, commentators from both the left and the right have been highly critical of the indictment, with the New York Times editorial board calling it “the product of an overzealous prosecution.” But condemnation of the indictment has not been perfectly unanimous, and a few commentators have now come out in support of the indictment. We examined all the details on a Teleforum conference call.

  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center, and Professor Emeritus, Louisiana State University Law School

McCullen v. Coakley - Post-Decision SCOTUScast

SCOTUScast 7-3-14 featuring Erik Jaffe and Richard Garnett
Erik S. Jaffe, Richard W. Garnett July 03, 2014

Erik JaffeRichard W. GarnettOn June 26, 2014, the Supreme Court issued its decision in McCullen v. Coakley. This case involved the constitutionality of Massachusetts’s law regarding speech within 35 feet of an abortion clinic. The law makes it a crime for speakers other than clinic employees to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of an abortion clinic.” The questions are first whether the law violates the First and Fourteenth Amendments, on its face and as applied to petitioners; and second, whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The Chief Justice delivered the opinion of the Court, which held that the Massachusetts law violates the First and Fourteenth Amendments. The Court found that the law was content neutral but not narrowly tailored to further the government’s legitimate interests. While Massachusetts has a legitimate interest in protecting public safety, patient access to healthcare, and unobstructed use of public sidewalks and streets, the law burdened more speech than necessary to achieve these interests. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed an opinion concurring in the judgment, which Justices Kennedy and Thomas joined. Justice Alito filed a separate opinion concurring in the judgment. The decision of the First Circuit was reversed.

To discuss the case, we have Mr. Erik S. Jaffe, Law Office of Erik S. Jaffe, P.C. and Prof. Richard W. Garnett, IV, Professor of Law & Concurrent Professor of Political Science, Founding Director, Program on Church, State & Society, University of Notre Dame Law School.