techdirt from the rap-on-brother-rap-on dept 4/19/2019 by Tim Cushing
The First Amendment is getting no help from the nation's highest court. Yet again, the Supreme Court is declining an opportunity to answer a very important question about free speech: where is the dividing line between threats and violent -- but protected -- speech?
The Supreme Court already punted on this issue in 2015 with the Elonis v. United States case. In that case, Anthony Elonis posted a bunch of nasty stuff online about his ex-wife. He ended up being jailed for these, with the court finding his posts -- which he claimed were merely him venting in the form of ultraviolent rap lyrics -- constituted threats.
His appeal went all the way to the top but the Supreme Court had nothing for him. It did overturn his conviction, but it left the First Amendment question unanswered. The Supreme Court said the trial court adhered to the wrong negligence standard -- one that said Elonis should have known his posts were threatening if any "reasonable person" would find them threatening. The correct standard to use was mens rea, meaning the government needed to prove Elonis knew his posts were illegal (i.e., that they were "genuine threats") when he posted them.
As for the First Amendment, the Supreme Court seemed happy to avoid this issue completely. Having decided the wrong standard was used by the trial court, the Supreme Court declared it did not need to hand down an opinion on the First Amendment implications, leading to the mess we're in now, with lower courts drawing disparate conclusions about the line between threats and protected speech.
The mess will continue. Pittsburgh rap artist Jamal Knox was jailed for the lyrics of his song "bleep the Police." An obvious tribute to the 1988 N.W.A. track, Knox's song included the names of two officers that had previously arrested him and some very descriptive violent acts involving them.
More:
https://www.techdirt.com/articles/20190417/20455342032/supreme-court-again-ducks-chance-to-clarify-first-amendment-protections.shtml
