The Supreme Court Sends an Unanticipated Signal on Free-Speech Rights

By August 11, 2015 March 7th, 2019 Trusteeship Article

Partially obscured in the flurry of landmark decisions at the end of the recently concluded Supreme Court term was one with potential ramifications for higher education. The Court’s June 1 decision in Elonis v. United States revisited important freedom-of-speech principles that arise when persons are criminally prosecuted for making particularly violent threats of murder or sexual violence.

The Elonis decision has it all. Its facts are titillating. It is fascinating and provocative on a doctrinal level. Although it does not involve college students, faculty, or staff members, it could affect the political and public relations stakes when colleges endeavor to address particularly virulent expressions of hate directed at members of the campus community.

In 2010, Anthony Elonis, an active Facebook user, posted graphic, vitriolic communications about his estranged wife, including violent threats, invitations to Facebook friends to assist him in her rape and killing, and photographs of himself wielding a knife. He was subsequently convicted under a federal law making it a felony to transmit any message that contains “a threat … to injure the person of another.”

The First Amendment generally prohibits the government from punishing persons based on the content of their speech. But the law recognizes an exception when speech rises to the level of a “true threat” to commit bodily harm. The issue on appeal to the Supreme Court was whether the existence or nonexistence of a true threat should be determined objectively or subjectively. Under an objective standard, prosecutors would have to prove that a reasonable person would perceive the utterance as “a serious expression of an intention to inflict bodily injury.” Under the more demanding subjective standard, the prosecutor would be required also to show that the speaker intended the speech in question to be threatening.

This may seem abstruse, but, in practical terms, the difference between objective meaning and subjective state of mind is immense. Under an objective standard, the words themselves become the analytic pivot point. It would be up to the decision maker to look at the words (“I will kill you,” for example) and determine whether they reasonably rise to the level of a serious expression of intent to kill. Under a subjective standard, on the other hand, the prosecutor would have to tender evidence that the speaker actually intended to communicate a threat. What makes the subjective standard problematic is that ordinarily the only compelling evidence of the speaker’s intent will come from the speaker himself or herself—and the speaker, needless to say, has a stake in testifying on that point in a self-serving and not necessarily truthful fashion.

On one level, the Supreme Court decision in Elonis is narrow in scope. It articulates canons of statutory construction that apply to the interpretation of federal criminal laws. Disciplinary proceedings on college campuses are not criminal proceedings. Elonis does not stand for the general proposition—and could not be used to argue— that in any campus disciplinary proceeding the Constitution requires use of a subjective standard for determining whether words rise to the level of a punishable “true threat.”

That caveat notwithstanding, campus officials should bear in mind that free speech has a distinctly political dimension, too. Self-anointed First Amendment guardians often argue that free speech is protected absolutely and that any effort on an institution’s part to levy sanctions based on distaste for or disapproval of the content of communications calls for the highest level of protection—meaning, after Elonis, the subjective standard of proof.

As a matter of First Amendment jurisprudence (at public institutions) and institutional respect for free-speech rights (at independent institutions), it is legally problematic to punish members of the university community based on disapproval of the content of their speech, even when that speech could reasonably and objectively be viewed as beyond the civilized pale. In the highly charged context of trying to fashion a proportionate response to hateful speech on campus, Elonis inserts another arrow into the quiver of organized groups championing free-speech rights at the most offensive extremes.