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.

Circuit Split Watch: Miranda at Booking

This article first appeared in the July 2, 2012, issue of the National Law Journal’s Supreme Court Insider.

Under an exception to the Miranda rule, police can ask routine booking questions, such as a suspect’s name and address, without giving a warning. But what about booking questions that have the potential to reveal more?

A pending petition for certiorari, filed by the University of Virginia School of Law’s Supreme Court Litigation Clinic, details a split in the federal appellate courts about the routine booking exception. The Supreme Court has already expressed interest in the case.

The key facts begin with Cecil Alford already under arrest and in the back seat of a police cruiser, incident to an earlier discussion and chase with police. One of the officers noticed that Alford was “kind of squirming” in the back seat. At their destination, police searched the vehicle and found a clear plastic bag with pills and a computer thumb drive under the back seat. The pills were later determined to contain ecstasy.

During the booking process and without a Miranda warning, police asked Alford if the thumb drive, found just under the bag of drugs, was his. Alford said yes, and the drive was stored with Alford’s personal property.

At trial, over Alford’s objection, prosecutors used his admission about the thumb drive to link him to the ecstasy. He was convicted of drug possession by a Texas jury and sentenced to five years in prison.

The Texas Court of Criminal Appeals, the state’s high court for criminal cases, rejected a Miranda challenge by Alford. The police inquiry about the thumb drive, the court held, was permissible as a booking question related to inmate property storage.

Alford filed a petition for certiorari with the Supreme Court, writing that the federal appellate courts “are deeply conflicted in their understanding and interpretation of the routine booking question exception to Miranda.”

The petition describes three approaches, with Texas in the minority.

Five federal appellate courts use a “should have known” standard, meaning that when an officer should have known that a booking question was likely to elicit incriminating information, he must give a Miranda warning.

Four federal appellate courts use an “intent” test; in other words, the officer must intend his questions to yield incriminating information to trigger a Miranda duty.

The D.C. Circuit and the Texas high court follow the “legitimate administrative function” test, which is that if the booking inquiry “is reasonably related to the police’s administrative concerns,” a Miranda warning is not required.

The petition also points to the same three-way split among many state high courts.

Texas waived its right to respond to Alford’s petition. However, the Supreme Court requested a response, due July 12. While a response request does not guarantee that the Court will hear the case, it does show that the petition has the Court’s attention.

Five faculty members from the University of Virginia’s clinic, all former Supreme Court clerks, are on Alford’s petition, including professors Daniel Ortiz and James Ryan.

The counsel of record is David Goldberg, an adjunct faculty member who works at Donahue & Goldberg, a two-man appellate boutique firm. Adjunct faculty John Elwood of Vinson & Elkins and Mark Stancil of Robbins, Russell, Englert, Orseck, Untereiner & Sauber are also on the petition, along with Don Davidson, a solo practitioner who was Alford’s counsel below.

UVA Clinic students take the lead in finding cases, collectively reviewing all federal appellate and state high court decisions. Professor Ortiz confirmed that a student identified Alford from reading Texas cases.