Facebook Case Tests Scope of ‘True Threat’

This article first appeared in the April 7, 2014, issue of the National Law Journal’s Supreme Court Brief.

A man convicted of making threats using Facebook has asked the U.S. Supreme Court to resolve a circuit split over what constitutes a “true threat.”

Under the pseudonym “Tone Dougie,” Anthony Douglas Elonis posted violent content on Facebook about his wife and others, often in the form of rap lyrics.

Elonis was convicted under 18 U.S.C. § 875(c), which makes it a federal crime to transmit “any threat to injure the person of another” in interstate commerce. There are comparable state laws.

The U.S. Court of Appeals for the Third Circuit rejected Elonis’ appeal.

In February, the University of Virginia School of Law’s Supreme Court Litigation Clinic filed a petition for certiorari on behalf of Elonis. John Elwood, a Vinson & Elkins partner and clinic instructor, is the counsel of record. Elwood is also a former assistant to the solicitor general and clerk to Justice Anthony Kennedy.

The brief in opposition is due April 21, so the justices could act soon on the petition.

Virginia v. Black, a 2003 Supreme Court opinion about cross burning, held that when a “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” that is a true threat (emphasis added). Such threats are not protected speech under the First Amendment.

The petition outlines a split among federal courts of appeals and state high courts over Black’s true threat definition. One interpretation focuses on the speaker, while the other focuses on the speaker and the listener.

Does the phrase “means to communicate” require that the speaker subjectively intend a threat, or is it enough that the message sent comes across objectively as a threat?

The petition also notes that at least eight state high courts are in conflict with the federal courts of appeals covering their regions. For instance, the First Circuit utilizes an objective test, while Massachusetts and Rhode Island follow a subjective one. State-federal conflicts are present in the Second and Ninth Circuits, too, the petition reports.

The Third Circuit applied the objective test, the majority view, to uphold Elonis’ Facebook convictions.

In his petition, Elonis argues for the subjective test, submitting that he was just using Facebook therapeutically, as his marriage had broken up and he had lost his job. The Facebook posts, the petition contends, “certainly involve no more violent imagery than songs by any one of scores of popular rappers, including the Eminem songs about the rapper’s ex-wife that inspired several of petitioner’s posts.”

In his Facebook posts, Elonis brought up the First Amendment, linking to a Wikipedia entry on freedom of speech. In one post, he wrote, “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”

The petition includes a rudimentary description of Facebook, a subtle recognition of the justices’ admitted lack of online savvy: Users have “a home page on which the user can post comments, photos, and links to other websites.” They “may become ‘friends’ with other users.”

Justice Elena Kagan has said that the justices do not even use email.

Justice Souter: Working in Reverse, by Choice

This article first appeared in the February 26, 2013, issue of the National Law Journal’s Supreme Court Brief.

Justice David Souter retired from the U.S. Supreme Court in 2009, but has not stopped being a judge.

In January, Souter heard fifteen arguments at the U.S. Court of Appeals for the First Circuit and eight more in February. As a retired associate justice, he has participated in approximately 170 First Circuit opinions, writing nearly fifty, far surpassing his previous experience as a court of appeals judge.

The First Circuit “is extremely grateful to Justice Souter for his invaluable contribution to the [court’s] work,” said Susan Goldberg, Deputy Circuit Executive, in response to an email inquiry for this article.

Even fully staffed, the First Circuit has only six active judges, the fewest of any circuit. One of those seats has been vacant since the end of 2011, when Judge Kermit Lipez took senior status. President Barack Obama nominated William Kayatta to the position in January 2012 and re-nominated him in January 2013. Kayatta was finally confirmed this month.

After serving on the bench for twelve years in New Hampshire, Souter’s home state, he sat on the First Circuit for just a few months, beginning in April 1990. He was nominated to the Supreme Court in July and confirmed in October. On that timetable, he heard argument, but authored no opinions.

Post-retirement, Souter’s numerous authored opinions for the First Circuit cover, among other topics, business, immigration, education, and employment.

In 2012, Souter was part of a unanimous decision in United States v. Kearney, written by Chief Judge Sandra Lynch. Kearney, which upheld restitution for a child pornography victim and identified a circuit split on the issue, is currently before the Supreme Court on a petition for certiorari. Another retired federal judge, Paul Cassell, filed a pending petition on behalf of victims in related litigation out of the Ninth Circuit.

One of the First Circuit appeals Souter heard recently involves a request to disqualify the district court judge in the case of accused mobster James “Whitey” Bulger. On the FBI’s Ten Most Wanted Fugitives list, Bulger eluded authorities for sixteen years before being captured in 2011.

At argument, Bulger’s attorney asserted that the federal government had given his client immunity, but declined to say when, despite the panel’s interest in the question. The district judge had been a federal prosecutor, so the date could be relevant to his alleged knowledge of the Bulger case.

Souter pressed the attorney twice, noting that his brief implied a particular time period. The attorney eventually confirmed Souter’s reading and offered, “You’re the first person to get that out of me.”

So, why would Souter retire from the nation’s highest court only to be so involved at another court?

As the other justices expressed in a farewell letter read from the bench by Chief Justice John Roberts on Souter’s last day: “We understand your desire to trade white marble for White Mountains, and return to your land ‘of easy wind and downy flake,’” references to a region in New Hampshire and the words of Robert Frost from his 1923 anthology, New Hampshire.

Put less poetically, the Associated Press quoted Souter as telling acquaintances that his was “the world’s best job in the world’s worst city.”

Solution: Keep judging at a high level, but from a different location.

First Circuit arguments are generally held in Massachusetts, an hour-and-a-half drive from the justice’s New Hampshire home. The court hears cases from those two states, as well as Rhode Island, Maine, and Puerto Rico.

In his resignation letter, Souter told President Obama: “I mean to continue to render substantial judicial service as an Associate Justice.”

By all accounts, he has succeeded.

Unlikely Lame-Duck Vote in 1980 Still Reverberates

This article first appeared in the December 19, 2012, issue of the National Law Journal’s Supreme Court Insider.

Thirty-two years ago this month, one day after John Lennon was killed, the Senate confirmed Stephen Breyer to serve on the U.S. Court of Appeals for the First Circuit. Looking back, this 1980 vote on a future U.S. Supreme Court justice was remarkable and historic in its timing, speed, and long-term consequences.

In November 1980, Jimmy Carter lost a landslide election to Ronald Reagan, and Republicans won control of the Senate. Just days later, though, President Carter nominated Breyer to the First Circuit, and the lame-duck Senate confirmed him in December.

Citing the Congressional Research Service in a press release two weeks ago, Senator Chuck Grassley noted that, in addition to 2012, “the Senate has confirmed judicial nominees during a lame-duck session in a presidential election year on only three [other] occasions since 1940” (1944, 1980, and 2004).

Breyer was the only judge confirmed in the 1980 lame-duck session; in other words, he was in a category by himself between 1944 and 2004.

Breyer moved from nomination to confirmation in less than a month, which was not completely out of the norm then. Other circuit judges confirmed earlier in 1980 had gotten votes in short order. The Senate confirmed Breyer’s future colleague, Ruth Bader Ginsburg, only two months after her nomination to the D.C. Circuit. Ninth Circuit Judge Stephen Reinhardt was the exception with a nine-month gap.

Today, Breyer’s one-month lag time would be almost unthinkable, particularly for a circuit nominee. President Obama nominated William Kayatta in January of this year for a Maine seat on Breyer’s former court, the First Circuit. Despite support from Maine’s two Republican senators, Kayatta has not yet been confirmed. Two pending circuit nominees have been on hold even longer.

Without the quick, once-in-a-blue-moon vote in 1980, Breyer would have had a long wait for another opportunity. Republicans controlled the White House for the next twelve years.

Breyer served on the First Circuit during that time and beyond, eventually presiding as chief judge when President Clinton nominated him to the Supreme Court in 1994.

Clinton could have nominated Breyer to the Supreme Court without circuit experience, but the odds are against it. The last ten nominees to join the Court, except Elena Kagan, were all circuit judges.

Perhaps Breyer could have been nominated to a circuit court soon after Clinton’s election and had a short stint below. David Souter sat for only five months as a circuit judge before being confirmed to the Supreme Court, as a nominee of President George H.W. Bush.

No one can know for sure what would have happened, because lightning struck for Breyer in 1980, and the rest is history.

So, why did Breyer’s 1980 nomination go through?

Boston Globe articles at the time point to at least two reasons.

Breyer, who was serving as chief counsel to the Senate Judiciary Committee when nominated, impressed senators from both parties.

“It’s a rare personality that can survive two years in Washington and gain the admiration of a liberal Democrat like Edward Kennedy and an arch-conservative like Republican Strom Thurmond,” the Globe explained. However, “Breyer managed to do it.”

The Globe also reported that the two parties may have struck a deal. Republicans would support the Breyer nomination, while Democrats would not push a stack of other pending judicial nominees. Republicans helped force a vote on Breyer when a block was attempted and then helped confirm him.

Circuit Split Watch: Help Wanted for Crack Sentencing Appeals?

This article first appeared in the October 17, 2011, issue of the National Law Journal’s Supreme Court Insider.

Congress passed the Fair Sentencing Act of 2010 to reduce the vast and heavily criticized disparity between crack cocaine and powder cocaine sentences.

Implementing the FSA has not been easy, though, as federal appeals courts have split over when it applies. Two of these cases could reach the Supreme Court soon as petitions for certiorari, and a third is already there.

In July, the 7th Circuit decided United States v. Holcomb, a consolidation of appeals involving four defendants. Each committed crack offenses before the FSA became law, but was sentenced after, receiving lower FSA sentences. For one defendant, the difference was 33 months (within the FSA range) versus 120 months (pre-FSA mandatory minimum).

A three-judge 7th Circuit panel, citing prior circuit precedent, found that the FSA only applies to offenses committed after it became law and that the sentencing date is irrelevant. As a result, the defendants would get the higher sentences. This had been the federal government’s position.

About a week later, though, Attorney General Eric Holder issued a “Memorandum for All Federal Prosecutors” that rejected this approach. Originally, prosecutors had been told that the FSA only applied to post-FSA offenses. However, as Holder explained, confusion in the courts and “the serious impact on the criminal justice system of continuing to impose unfair penalties” had caused him to review and change the policy. Going forward, the FSA would apply to post-FSA sentences, regardless of the offense date.

After the government notified the 7th Circuit of the policy change, the court denied rehearing en banc sua sponte. The vote was a tie, 5-5, leaving the earlier decision intact.

Chief Judge Frank Easterbrook, writing for the four other judges opposed to rehearing en banc, focused on 1 U.S.C. § 109. Under that section, repealing a statute does not “extinguish any penalty” of the old statute, except where expressly stated in the “repealing Act.” Put another way, the FSA is not retroactive unless it says so. And it doesn’t, Easterbrook concluded. He also saw no implied retroactivity.

Judge Ann Claire Williams, joined by the four other judges who voted for rehearing, called this result “wrong” and “nonsensical.” Judge Richard Posner, who joined Williams, but also wrote a separate individual dissent, went further, deeming it “gratuitously silly” and “perverse.”

The FSA, Williams noted, gives the Sentencing Commission “emergency authority” to promulgate guidelines consistent with the FSA “as soon as practicable.” Also, the FSA states that it is “restor[ing] fairness to Federal cocaine sentencing.” Williams questioned why Congress would rush to replace admittedly unfair sentences, only to continue imposing them.

As both sides pointed out, there is a 3-2 split among the federal appellate courts on when to apply the FSA. The 1st, 3rd and 11th Circuits are in sync with Williams’ opinion, while the 8th Circuit squares with the 7th Circuit holding defended by Easterbrook.

The 7th and 8th Circuit cases are likely to be appealed to the Supreme Court soon. Like the 7th Circuit, the 8th Circuit recently denied rehearing en banc. Also, an earlier 7th Circuit case on FSA retroactivity, Fisher v. United States, is already pending before the Court as a petition. It was distributed for the September 26 conference, but the Court took no action, perhaps waiting in anticipation of further petitions. (See also Dorsey v. United States, consolidated with Fisher below.)

Because of the circuit split, and the practical implications for many defendants, the Supreme Court may decide to grant certiorari. If so, the scenario will be different than most, since the winner in the 7th and 8th Circuits, the government, now disagrees with those decisions. In such cases, the Court can appoint an attorney to defend the judgments below. Often, as Legal Times has reported, former Supreme Court clerks get this nod.

The government has not appealed its losses in the 1st, 3rd and 11th Circuits, but the latter is still pending. On October 4, the 11th Circuit ordered rehearing en banc sua sponte.

Something in the Water: SCOTUS Loss, First Circuit Gain?

The Boston Globe is reporting that two candidates remain for an opening on the U.S. Court of Appeals for the First Circuit (sitting in Maine): William Kayatta, Jr., a partner in the Portland, Maine office of Pierce Atwood, and Jon Levy, a justice on Maine's Supreme Judicial Court. Members of Maine's congressional delegation forwarded the names to President Obama, who will send one to the Senate.

By appointment of the U.S. Supreme Court in April, Mr. Kayatta is serving as a Special Master in a water rights dispute between Kansas and Nebraska. (Colorado is also a named party, but the current round of this long-running dispute is between the other two states.) Such disputes fall under the Court's original jurisdiction and are referred initially to a Special Master, who then makes recommendations to the Court.

If you'll forgive the pun, something may be in the water, because Steve Six, who represented Kansas earlier in the dispute when serving as state attorney general, is now a Tenth Circuit nominee. His Senate Judiciary hearing was held this week.

First Circuit: Justice Souter on Class Size/ADA

Can smaller class size be a "reasonable accommodation" for disabled teachers under the Americans with Disabilities Act? Late last week, retired Supreme Court Justice David Souter, sitting by designation and writing for a unanimous First Circuit panel, said yes (at least at the motion to dismiss stage).

The appellants "are [two] public school teachers in Ponce, Puerto Rico." One allegedly "suffered a stroke while teaching and required heart by-pass surgery." The other allegedly has "a throat condition," which causes "excessive coughing and shortness of breath." The teachers' impaired health was medically certified and both were given small classes (between fifteen and twenty students) for a period of several years.

However, after the Puerto Rico Education Department Secretary raised the minimum to twenty students, both teachers' class sizes went up—actually beyond the minimum, to thirty students. One was given a team teacher to assist, but that person was new and required supervision. Both teachers brought suit, alleging that the increased class size caused "emotional and physical stress requir[ing] treatment."

The district court dismissed the complaints for failure to state a claim, but the First Circuit, with Justice Souter writing for the panel, disagreed and vacated the lower rulings.

Citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a decision he authored, and other cases, Justice Souter found that the district court required too much. Viewing the allegations in the plaintiffs' favor, "one would infer that there probably is some causal connection between the work of a doubled class size and the physical and emotional deterioration of the disabled teacher." Under Twombly, "[a] plausible but inconclusive inference from pleaded facts will survive a motion to dismiss," Souter wrote.

Previous Appellate Daily coverage of Justice Souter sitting on the First Circuit is here.

First Circuit: Rashomon Meets Night at the Roxbury

The parties' accounts of a late-night arrest in Roxbury, Massachusetts, the subject of a First Circuit decision earlier this week, vary greatly.

From the police officer's viewpoint, plaintiff Matthew Raiche led him and another officer on a chase, including down one-way streets headed the wrong way, stopping only when he got stuck. (Raiche was on a motorcycle and the officers were in a police cruiser.) From Raiche's viewpoint, he pulled over at his earliest safe opportunity and waited on his motorcycle, thinking the cruiser merely needed to pass.

The officer explained that once Raiche stopped, he left the cruiser and lifted Raiche off the motorcycle. Raiche, on the other hand, remembers that the officer "launched himself in the air and tackled Raiche, football-style, to the ground." The motorcycle was irreparably damaged from the impact and Raiche's head hit the ground (ironic, since the reason for the pursuit was that Raiche was not wearing a helmet). Also, during handcuffing, Raiche's shoulder was partially dislocated and his head hit the ground again.

Ultimately, the jury believed part of both stories, finding that the officer had probable cause for the arrest, but used unreasonable force. It likely made a difference that while the officer recalled instructing Raiche to get on the ground before placing him there, the officer's partner did not recall this warning (although he did confirm the officer's version of the chase). The jury awarded Raiche $2,500 in compensatory damages and no punitive damages.

The officer appealed, citing qualified immunity, as he had in the district court. Characterizing the incident as "a late-night lapse in judgment" on the officer's part, the First Circuit found that his "use of force was not defensible and, therefore, that qualified immunity affords him no refuge."

Today: DOJ and Two Key Gay Rights Appeals

Two key gay rights appeals in the news today, one filed and another under consideration:

1-Today, DOJ appealed a federal district court's rulings against the Defense of Marriage Act, which defines marriage as between a man and a woman and denies federal benefits to same-sex couples.  DOJ's spokeswoman noted the Department's longtime practice of defending federal statutes (although President Obama has spoken out against DOMA).

2-Also today, another federal district judge issued an injunction, preventing the military from enforcing "Don't Ask, Don't Tell."  Per a Jan Crawford report, DOJ is also preparing to appeal this ruling.  Although the Obama Administration opposes DADT, it wants Congress, not the courts, to resolve the issue, Crawford reports.

The First Circuit will decide the DOMA appeal and the Ninth Circuit, the DADT appeal, if filed.

Souter, Associate Justice (Ret.), Sitting by Designation

This week, the First Circuit issued a decision that combined a psychologist's report, a divorce, and jurisdictional issues.  As Judge Bruce Selya wrote, "This appeal compels us to weave a decisional tapestry from several doctrinal strands that help define the margins of federal-court jurisdiction, including Eleventh Amendment immunity, abstention, and standing."  Retired Supreme Court Justice David Souter sat on the unanimous panel.