U.S. Supreme Court Must Narrowly Define Criminal “Threats” to Protect Free Speech Rights

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August 28th, 2014 by

Thomas More Society files amicus brief on behalf of pro-life, anti-war, and animal rights advocates

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(August 28, 2014 – Washington, D.C.) – Thomas More Society has partnered with the Chicago office of the national law firm, Jones Day, in filing an amicus curiae (“friend of the Court”) brief urging that the U.S. Supreme Court adopt a narrow definition of the type and content of communications which the federal government may prosecute as criminal “threat[s] to injure the person of another,” under 18 U.S.C. §875(c) of the U.S. Criminal Code.  The issue is posed in Elonis v. U.S., a case that the Supreme Court agreed to hear this past June and which it will hear and decide sometime next Term.

“The outcome of this case could not be more important for those who advocate in favor of so-called ‘controversial causes,’ using powerful and urgent rhetoric,” said Tom Brejcha, president and chief counsel of the Thomas More Society.

Brejcha continued: “Such advocates must be free to speak out freely and boldly against what they deem to be gross injustice, even when their opponents, defenders of the status quo, may attack their advocacy as ‘threatening’ the peace and good order of society.  Too often, speakers who use ardent and emotional rhetoric are blamed for causing their opponents to ‘feel threatened and fearful of bodily harm, even though no such fear, let alone bodily harm, was ever intended by the speaker.’ Once a speaker’s advocacy is found by a judge or jury to contain or constitute a ‘true threat,’ it is criminalized and deemed outside the protection of the First Amendment guarantee for ‘free speech.’”

The Jones Day/Thomas More Society amicus brief argues that First Amendment rights are jeopardized unless speakers are proven to have an actual subjective intention to put another person in fear of bodily harm before their speech is criminalized. An unduly expansive definition of what constitutes a “true threat,” based only on what is supposedly understood or perceived by potentially biased listeners, poses a very serious danger that advocates’ free speech rights will be eroded, suppressed, and destroyed.

The amicus curiae brief urges the Supreme Court:

  1. To decide that proof of a subjective intent to threaten should be required before a speaker is punished.
  2. To avoid giving license to those who oppose a protestor’s message to use the statute as a sword to silence opposition.

“If the bias of a listener is allowed to shut down free speech, this unduly expansive definition of ‘true threat’ may be used as a weapon to negate important and necessary political expression,” said Tom Brejcha, president and chief counsel of the Thomas More Society.

“Pro-life activists have been blamed for making criminal, constitutionally unprotected threats of harm to abortion providers or supporters for even the most innocuous advocacy, ” Brejcha continued.  Thus the abortionists claimed during the NOW v. Scheidler litigation (which we defended over 28 years and three trips before the U.S. Supreme Court) that urging a ‘Catholic’ abortion worker to quit her job lest she lose her immortal soul was argued to be a death threat.  And when Joseph Scheidler left a calling card at an abortionist’s office, on which he wrote, ‘Sorry I missed you – choose life,’ that too was argued to be a death threat!  Our trial Judge, using an overbroad legal test like the one used in Elonis, let the jury decide if these comments could be ‘reasonably understood’ to constitute such death threats, without any proof that they were actually intended as such by the speakers.  Such a loose test tramples free speech rights.”

The amicus brief was filed on behalf of pro-life activists, anti-war, and animal rights advocates, including People for Ethical Treatment of Animals, Inc. (PETA) of Norfolk, VA, Carol Crossed of Rochester, NY Chris Coatney of Detroit, Daniel Miller of Milwaukee, Operation Rescue, Troy Newman and Cheryl Sullenger of Wichita, KS, Citizens for a Pro-Life Society and Monica Miller of the Detroit area, Pro-Life Action League, Inc., Joseph, Ann, and Eric Scheidler of Chicago, Missionaries to the Preborn and Matt Trewhella of Milwaukee, Defend Life and Jack Ames of D.C.-Maryland, Survivors and Jeffrey Lee White of Southern California, Pro-Life Action Ministries and Brian Gibson of the Twin Cities, MN, and Vote Life America, Jim Finnegan and Arlene Sawicki of Northwest Suburban Chicago.

“The issue before this [Supreme] Court cuts to the core of the First Amendment and threatens one of the most basic freedoms enjoyed by American citizens: the right to protest,” the brief concludes.

While many observers have disapproved many of the violent words and images that Mr. Elonis posted on his Facebook page, for which he was found guilty for violating the federal anti-threat statute, the lower courts committed reversible error by using an unduly expansive legal definition of “true threat” which the Supreme Court must overrule, lest this unconstitutionally overbroad test prevail as our governing law, causing other wholly innocent advocates to lose their right of free speech.  Mr. Elonis might well have been convicted under a proper, narrow definition of “true threat,” but his federal prosecutors went out of their way to use the overbroad definition.

The amicus curiae brief, whose principal author was Brian J. Murray of Jones Day, former law clerk for Scalia, J. on the high Court, may be found here.  A copy of the petition for Supreme Court review may be found here.

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