Communication Currents

Threats on Facebook, Confederate Flags on License Plates, and Growing a Half-Inch Beard: The Supreme Court’s 2014–2015 Term and the First Amendment

October 1, 2015
Freedom of Expression

Let’s get this straight. If you’re a psychopath and you post a virtual blue-print of where your wife lives and how to kill her, boast about how you can slit the throat of a woman who is an FBI agent, and make not-so-veiled threats about the massacre of a classroom of kindergarteners, this is all hunky-dory with the U.S. Supreme Court, provided that 1) you claim to be writing rap lyrics because you have posted your threats in verse, and 2) you whine successfully that you did not intend for your wife to feel threatened. Really? Sadly, yes.

The U.S. Supreme Court contemplated the question of what constitutes a “true threat” after a man posted his thoughts about killing his wife on Facebook. Anthony Elonis’ wife left him and took their two children with her in 2010, at which point Elonis used Facebook to post rants such as:

  • “Did you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt.”
  • “I also found out that it's incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sunroom.”

Elonis also posted the rant:

  • “Enough elementary schools in a 10-mile radius to initiate the most heinous school shooting ever imagined, and hell hath no fury like a crazy man in a kindergarten class.”

After FBI Agent Denise Stevens attempted to question Elonis, he posted another rant on Facebook in which he fantasized about slitting Agent Stevens’ throat. Police later arrested Elonis in December 2010. Prosecutors charged him with “transmitting in interstate commerce… a threat to injure the person of another” in violation of 18 U.S.C. § 875(c). A jury convicted Elonis and he served a 44-month prison term. Elonis challenged his conviction as a violation of his First Amendment rights, but the U.S. Court of Appeals for the Third Circuit upheld the federal district court’s decision that Elonis’ rants on Facebook comprised “true threats.” United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013).

Elonis appealed, arguing that he never intended to threaten anyone, and the U.S. Supreme Court reversed his conviction on the grounds that the lower court’s instructions to the jury were in error. The judge had instructed the jury to consider whether or not a “reasonable person” would view Elonis’ posted messages as a true threat (this is the legal standard that lawyers refer to as “negligence”), but the judge had also instructed the jury not to consider Elonis’ intent. The High Court held that mere negligence without establishing Elonis’ intent was not enough to uphold a conviction. Elonis’ defense was that he was merely writing and posting rap music lyrics similar to those of Eminem, who had performed a rap in which he fantasized about killing his ex-wife. The High Court found that the prosecutors had not proven beyond a reasonable doubt that Elonis intended for his comments to be a threat. The justices left open the question of whether a standard of “recklessness,” meaning “reckless disregard” for whether an intended victim felt threatened, rather than a standard of “negligence,” would have been enough to uphold Elonis’ conviction. Chief Justice John Roberts wrote for the majority, basing his opinion on the mens rea [criminal intent] without reaching the First Amendment issues. In addition to dodging the First Amendment issue, the majority did not clarify what mental state would be required to convict someone. Justice Samuel Alito concurred in part and dissented in part; in his dissent, he noted that Elonis’ wife was “extremely afraid” when she saw his posts. Alito commented: “A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech” (Elonis v. United States, 135 S.Ct. 2001 at 2017).                     

 Government Speech: Walker v. Texas Division, Sons of Confederate Veterans, 135 S.Ct. 2239 (2015)

After the Texas Division of Motor Vehicles (DMV) rejected specialty license plates featuring the Confederate flag in 2011, the Sons of Confederate Veterans challenged the DMV on First Amendment grounds and won in the U.S. Court of Appeals for the Fifth Circuit. Ben Jones (yes, the same guy who played the mechanic Cooter Davenport in The Dukes of Hazzard)argued that the Confederate flag was a “symbol of sacrifice, independence, and Southern heritage.” Furthermore, the Confederate flag already appears on license plates in Alabama, Georgia, Louisiana, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia. But attorneys for the state of Texas argued that “a state is fully within its rights to exclude swastikas…and overt racism from state-issued license plates.” 

The U.S. Supreme Court agreed with the state of Texas, reversing the Fifth Circuit and ruling that the Texas DMV’s decision comprised “government speech” rather than private speech. As long as it is “government speech,” the First Amendment is not at issue, and the government is free to say whatever it likes. Justice Samuel Alito wrote a dissenting opinion, joined by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy. They argued that license plates were limited public forums in the form of “mobile billboards” and should be considered private—not government—speech.

But the High Court said very little about the current split among the circuits; for example, the U.S. Courts of Appeal for the Second and Ninth Circuits have held that license plates comprise private speech, the Fourth Circuit has held that they are a combination of private and government speech, and the Sixth Circuit has held that they are government speech. Since the Fifth Circuit had ruled that license plates comprised private speech but was overruled in Walker, it will be interesting to see whether the Second, Fourth, and Ninth Circuits follow suit, or whether the High Court will have to revisit this issue to resolve the split among the circuits.

Establishment Clause 

Holt v. Hobbs, 135 S.Ct. 853 (2015)

Gregory Holt, who adopted the name Abdul Maalik Muhammad, is a prisoner in the Arkansas Department of Correction who is serving a life sentence for stabbing his ex-girlfriend, Connie Taylor (she survived). After converting to Islam, he believed that his faith required him to leave his beard uncut. Past prison policy prohibited all beards, although inmates diagnosed with a dermatological problem were allowed to have a quarter-inch beard. The Religious Land Use and Institutionalized Persons Act (RLUIPA) holds that the government may not interfere with an inmate’s religious practices unless there is a compelling state interest (such as preventing prisoners from concealing contraband in their beards, for example). Holt filed suit, challenging the Arkansas policy of prohibiting all beards by invoking RLUIPA, seeking a “compromise” position of growing a half-inch beard. The U.S. Supreme Court found that Arkansas corrections officials had violated Holt’s religious liberty, ruling that Holt should indeed be permitted to grow a half-inch beard.

Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores135 S.Ct. 2028 (2015)

In 2008, 17-year-old Samantha Elauf applied for a job at an Abercrombie & Fitch clothing store in Tulsa, OK. She wore a hijab (headscarf) to the interview, although she never specified that she was Muslim. Heather Cooke, who interviewed Elauf, asked a manager if Elauf could wear the hijab, but the manager answered that employees were not permitted to wear hats in the store, so Cooke did not hire Elauf. In 2009, the Equal Employment Opportunity Commission (EEOC) sued Abercrombie & Fitch on Elauf’s behalf. When the case reached the U.S. Supreme Court, Justice Antonin Scalia wrote the majority opinion holding that Elauf did not have to explicitly request an “accommodation” (permission to wear a hijab) to obtain protection from Title VII of the 1964 Civil Rights Act, which prohibits employers from discriminating on the basis of religion. Elauf may thus proceed with her suit against Abercrombie & Fitch for employment discrimination.

We must acknowledge that this is a Title VII employment discrimination case rather than an Establishment Clause case in the sense that no one tried to prevent Elauf from adhering to Islam, so the First Amendment is not directly implicated. But it is worth remembering that Title VII requires prospective employers to treat applicants of all religious faiths equally, just as the Establishment Clause requires our government to treat citizens of all religious faiths equally.

Reed v. Town of Gilbert, Arizona, 135 S.Ct. 2218 (2015) 

The town of Gilbert, AZ, had an ordinance regulating the size and the length of time signs could be displayed based on categories such as 1) political, 2) “qualifying events,” 3) homeowners’ association events, or 4) real estate, among others. Real estate signs could be up to 80 square feet. Political signs could be up to 32 square feet and could be on display for more than four months before an election. But “qualifying events” signs could not be larger than six square feet and could be displayed for only 14 hours. The Good News Community Church displayed signs that fell into the “qualifying events” category to announce when its services were held. The church challenged Gilbert’s ordinance as an impermissible content-based restriction, and the U.S. Supreme Court justices agreed, ruling that the ordinance violated the First Amendment. Although the vote was unanimous, six of the nine justices held that all content-based laws require strict scrutiny. This means that content-based laws can be justified only if the government can prove that they are narrowly tailored to serve a compelling state interest.

The other three justices concurred, but argued that requiring strict scrutiny was too sweeping, endangering many reasonable time-place-manner restrictions on signs. Justice Elena Kagan warned that the High Court “may soon find itself a veritable Supreme Board of Sign Review.” In his concurring opinion, Justice Stephen Breyer warned that the majority’s requirement for strict scrutiny to apply to all content-based regulations could open the door for constitutional challenges to many other laws, such as those covering exceptions to confidentiality of medical records, disclosures on tax returns, or regulation of securities (Reed, 135 S.Ct. 2218 at 2235).

Justice Breyer’s warning could be prophetic. New York Times reporter Adam Liptak suggested in an August 17, 2015, article that Reed may be the “sleeper case” of the 2014–2015 term. Liptak explains that the Reed decision has already required lower courts to strike down laws barring panhandling [Norton v. City of Springfield, Illinois2015 U.S. App. LEXIS 13861 (7th Circuit, August 7, 2015)], laws barring robocalls on political and commercial topics but not on other topics [Cahaly v. LaRosa, 2015 U.S. App. LEXIS 13736 (4th Circuit, August 6, 2015)], and laws barring voters from taking a photo of a completed election ballot and showing it to others [Rideout v. Gardner, 2015 U.S. Dist. LEXIS 105194 (U.S. Dist. New Hampshire, August 11, 2015)]. If Liptak is correct, Reed’s requirement to apply strict scrutiny could result in numerous ordinances being struck down, and Reed’s impact would reach far beyond the size of a church sign.

Judicial Elections 

Williams-Yulee v. Florida Bar, 135 S.Ct. 1656 (2015)

Lanell Williams-Yulee was a judicial candidate for the Hillsborough County Court of Florida. During her campaign in 2009, she sent out a mass mailing of signed letters asking for campaign donations and posted the letter on her website. But the Florida Supreme Court issued a public reprimand of Williams-Yulee and required her to pay $1,860 in court costs for violating a Florida Bar rule that prohibited judicial candidates from personally asking their supporters for money; the Florida Bar requires that candidates are required to go through campaign committees for fundraising. Williams-Yulee filed suit, arguing that the First Amendment should protect written solicitations, including those that are mass-mailed to potential donors.

When her case reached the U.S. Supreme Court, the vote was 5 to 4, with the majority ruling that states may prohibit judicial candidates from personally asking their supporters for campaign donations. The decision in effect upheld laws in 30 states that forbid judicial candidates from making personal appeals for donations. The concern is that if candidates were permitted to personally solicit campaign funds, it would undermine public confidence in the judicial system because the lawyers who make contributions can find themselves in court arguing cases before the judges whom they helped to elect. Judicial candidates are permitted to send individual thank-you notes to contributors, provided that the original request for funds goes through a campaign committee. The High Court thus upheld the Florida Bar’s prohibition on personal solicitations for campaign contributions.

An Expansive Interpretation of the First Amendment 

Considering the Supreme Court’s 2014–2015 term in the context of the past several years, we can see that the court has generally taken an “expansive” approach to interpreting the First Amendment. If we look at recent high-profile cases, we see that the High Court has:

  • Struck down a California law that banned selling violent video games to minors (Brown v. Entertainment Merchants Association2011).
  • Upheld the right of the Westboro Baptist Church to demonstrate at the scene of military funerals carrying hate-filled homophobic messages on picket signs (Snyder v. Phelps2011).
  • Struck down various fines that the Federal Communications Commission (FCC) had levied against television networks for nudity and “fleeting expletives” on the grounds that the FCC had not provided clear guidelines on what comprised “indecent” content (Federal Communications Commission v. Fox Television Stations2012).
  • Struck down the Stolen Valor Act, a law that had made it a crime to lie about having received a military medal (United States v. Alvarez2012).
  • Struck down limits on aggregate federal campaign contributions, meaning that donors may give money to as many candidates as they choose, although they still cannot give more than $2,600 to an individual candidate in an election cycle (McCutcheon v. Federal Election Commission2014).
  • Ruled that closely held for-profit corporations can claim an exemption under the Religious Freedom Restoration Act (RFRA) so that the corporations can refuse to provide coverage for contraceptives under their health care plans (Burwell v. Hobby Lobby2014).

In the cases above, the U.S. Supreme Court has struck down laws that had attempted to set limits on freedom of speech, and in Burwell, it expanded its interpretation of the Establishment Clause to allow corporations to enjoy the practice of their religious beliefs.

The U.S. Supreme Court appears to be more willing to uphold limits on speech when a government entity or state bar association is asking it to do so, as when the Texas Division of Motor Vehicles refused to allow the Confederate flag on specialty license plates (Walker), or when the Florida Bar prohibited judicial candidates from making personal appeals for campaign donations (Williams-Yulee). 

But if an enraged ex-husband such as Anthony Elonis posts threats against his ex-wife on Facebook, well, hey, the illustrious justices have his back. Oh, and just in case women might feel less safe knowing that crazy ex-husbands can get away with making threats as long as they emulate Eminem, it is worth noting that U.S. Magistrate Judge Henry Perkin ordered Anthony Elonis back to jail on April 28, 2015, on charges of domestic violence and harassment. Guess  his threats were not artistic enough to fool Judge Perkin.

About the author (s)

Juliet Dee

University of Delaware

Associate Professor