Elonis v. United States (13-983)

argument 13-983

Elonis v. United States

Supreme Court of the United States 1h 3m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the main topic discussed in this episode?

John G. Roberts 0:01

You'll hear argument next this morning in case thirteen nine eighty three. Illonis versus

David E. Elwood 0:06

United States. Mr Elwood? Mr. Chief Justice, and may it please the court. The First Amendment permits restrictions on the content of speech for a few well defined and narrowly limited classes of communication, clearly supported by history and tradition, including what this Court has called true threats. The government has failed to justify inclusion.

Anthony M. Kennedy 0:33

of a good service when it said true threat. It can mean so many things. It can mean that You really intend to carry it out? A you really intend to intimidate the person Uh or

What is the Supreme Court’s definition of a “true threat” under the First Amendment?

Anthony M. Kennedy 0:46

Uh that no one could possibly believe us either. I don't know. That's true. Uh fault you for citing what the Supreme Court has said, but it's a most unhelpful phrase.

David E. Elwood 0:55

And it it also doesn't help that it that it was announced in a procureum decision that didn't have the benefit of merit's briefing or argument. But if you look at the tradition, uh uh threatening speech was not uh punishable at common law, and until the late twentieth century, uh American threat statutes required or were interpreted to require proof of a subjective intent to place the listener in fear. Uh and because of that there

Stephen G. Breyer 1:21

just an assault at common law, wasn't it? If you threaten somebody with violence and uh Um don't actually apply violence, it's still unassault, isn't it?

David E. Elwood 1:30

Uh i it's I I think assault is somewhat different because assault can be also be an attempted battery. Uh but it's my understanding there is a lot of the question that uh that uh assault uh i when it involved placing someone in fear did require a specific intent.

Antonin Scalia 1:47

How does one prove? what's in somebody else's mind. This case the standard was would a reasonable person Think that The the words would put someone in fear. and reasonable people can make that judgment. But how would the government Pooh. Whether this threat in the mind of the threatener. of Channel. I

David E. Elwood 2:21

think two ways and generally speaking. Uh as we indicated in our brief, uh in order to prove up these threats which are increasingly made online using a cell phone or a computer, you will have to search the search the computer or cell phone to show that it was actually used to make these statements. You will also find on there a wealth of information, as the court indicated in Riley, people conduct their entire lives electronically. Yeah, you're

John G. Roberts 2:46

you're going to find a lot of information on the cell phone ever that the guy is really angry uh at his his ex wife, uh and and uh you know, would like to see her um suffer and he's gonna put it online and then you're gonna say, well that was just therapeutic, as you said in your brief. It was therapeutic, yes, of course it shows that he was going to do something dangerous. It's a good thing that he had this outlet of the internet, so he didn't have to do it.

David E. Elwood 3:15

But

John G. Roberts 3:16

I I think

David E. Elwood 3:16

I I I think that the point is that there's uh you there's there's a lot of information you could find. You could find, for example, that he had visited a web page where she in she confided to someone else that she was in fear. Uh there is a there is you know, you can find uh you could prove you could find the fact that she's

John G. Roberts 3:31

I thought your whole point was the fact that she's in fear doesn't tell you enough about what the defendant wants.

David E. Elwood 3:36

No, but if he if you can see that he visited her website at a time that she was saying, I'm afraid of this guy or I'm afraid of what he's saying, you could say you could prove up that he knew at the time that she he was aware that she was a very good idea.

John G. Roberts 3:48

All he has to do is say either as I understood your brief, it's therapeutic, it's a good thing I could do this

David E. Elwood 3:54

Or it's art. If he is on notice that she is in fear, uh that is all we're asking for, that he if he knows that she is in fear, he doesn't have a right to continue on. That is w what we view as stating an intent to cause fear. If you are aware of that, would you

Elena Kagan 4:10

tell me whether it's your uh I'm sorry. Could you tell me and I'm off of Justice Ginsburg's question. You can infer what a person's state of mind is from the circumstances