The case has drawn widespread attention from free-speech advocates who say comments on Facebook, Twitter and other social media can be hasty, impulsive and easily misinterpreted. They point out that a message on Facebook intended for a small group could be taken out of context when viewed by a wider audience.I posted earlier about Judge Rakoff's article about innocent people pleading guilty. There's an interesting exchange between Judge Baylson and Judge Rakoff in the New York Review of Books. Baylson concludes:
"A statute that proscribes speech without regard to the speaker's intended meaning runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed," said a brief from the American Civil Liberties Union and other groups.
But so far, most lower courts have rejected that view, ruling that a "true threat" depends on how an objective person perceives the message.
For more than four decades, the Supreme Court has said that "true threats" to harm another person are not protected speech under the First Amendment. But the court has been careful to distinguish threats from protected speech such as "political hyperbole" or "unpleasantly sharp attacks."
Elonis claims he was depressed and that his online posts under the pseudonym "Tone Dougie" were a way to vent his frustration after his wife left him and he lost his job working at an amusement park. His lawyers say the posts were heavily influenced by rap star Eminem, who has also fantasized in songs about killing his ex-wife.
But Elonis' wife testified that the comments made her fear for her life.
After she obtained a protective order against him, Elonis wrote a lengthy post mocking court proceedings: "Did you know that it's illegal for me to say I want to kill my wife?"
A female FBI agent later visited Elonis at home to ask him about the postings. Elonis took to Facebook again: "Little agent lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist and slit her throat."
Elonis was convicted of making threats of violence and sentenced to nearly four years in federal prison. A federal appeals court rejected his claim that his comments were protected by the First Amendment.
The Obama administration says requiring proof that a speaker intended to be threatening would undermine the law's protective purpose. In its brief to the court, the Justice Department argued that no matter what someone believes about his comments, it does not lessen the fear and anxiety they might cause for other people.
"The First Amendment does not require that a person be permitted to inflict those harms based on an unreasonable subjective belief that his words do not mean what they say," government lawyers said.
The National Center for Victims of Crime, which submitted a brief supporting the government, said judging threats based on the speaker's intent would make stalking crimes even more difficult to prosecute.
"Victims of stalking are financially, emotionally and socially burdened by the crime regardless of the subjective intent of the speaker," the organization said.
No judge wants to see an innocent person prosecuted, convicted, or sent to prison. A criminal justice system must ensure that fundamental principle. Pretending that plea bargains or sentencing guidelines have led to the imprisonment of the innocent is not just incorrect, but impugns the honesty of prosecutors and the diligence of judges.And Rakoff's intro from his reply:
Barely a month goes by without someone who pled guilty being exonerated and released from prison. For example, the National Registry of Exonerations recently established by the University of Michigan Law School currently lists 162 such persons, or nearly 11 percent of the 1,476 post-conviction exonerations that have been publicly reported since 1989. If Judge Baylson’s views of the current system were correct, these figures would be zero. Instead, they are just the tip of the iceberg.
To say, as Judge Baylson does, that “most” defendants who plead guilty are in fact guilty simply dodges the issue of how many innocent people are being coerced into pleading guilty by the potential for draconian sentences effectively controlled by the prosecutor. And it is ironic that Judge Baylson should seek to justify federal prosecutors’ prior policy of charging the most serious provable crime as “truth in charging” when, as the Aaron Swartz case mentioned by his father and described below illustrates, the policy often has served not as a reflection of what everyone understood was the true nature of the alleged crime, but as a device to help extract a guilty plea to a lesser offense. Indeed, it was partly this effect that led the current attorney general to abandon the policy, stating that in many cases such a policy was not “appropriate.”This is an important point:
Judge Baylson suggests both that the defendant has a strong weapon in the form of the presumption of innocence and that the prosecutor has a high burden of proof. But this suggestion really only comes into play if the defendant is willing to take the risk of going to trial and likely suffering a huge sentence if he loses. At the plea bargain stage, moreover, the prosecutor not only credits the un-cross-examined evidence received from his police force but also knows that, since 97 percent of the cases will be resolved by pleas, the prosecutor’s own risk of losing is minimal.