Academic journal article Rutgers Computer & Technology Law Journal

Elonis V. United States: At the Crossroads of First Amendment and Criminal Jurisprudence in the Digital Age

Academic journal article Rutgers Computer & Technology Law Journal

Elonis V. United States: At the Crossroads of First Amendment and Criminal Jurisprudence in the Digital Age

Article excerpt

I. TRUE THREAT OBJECTIVE ANALYSIS                               115 II. THE FAILED NEGLIGENCE STANDARD AND THE STRUGGLE         TO FIND THE REASONABLE PERSON ONLINE                    121 III. KNOWINGLY AND PURPOSELY: THE STRUGGLE TO         UNMASK THE MAN BEHIND THE KEYBOARD                      125 IV. THE DIFFICULTY INTERPRETING MENS REA ONLINE AND         THE INTERNET AS A DISTINCT COMMUNICATION         MEDIUM                                                  127 V. THE RECKLESSNESS STANDARD SOLUTION TO ONLINE         THREATS                                                 130 VI. A NEW APPROACH TO ONLINE THREATS APPLIED TO         ELONIS V. UNITED ST A TES                               132 VII. THE PROPOSED TRUE THREAT ANALYSIS AND THE CASE         OF JUSTIN CARTER                                        137 VIII. CONCLUSION: THE DIGITAL MARKETPLACE OF IDEAS         AND A CONTINUED NEED FOR BALANCE                        139 

"[E]very man--in the development of his own personality--has the right to form his own beliefs and opinions.... Hence, suppression of belief, opinion and expression is an affront to the dignity of man, a negation of man's essential nature." (1) The ink that our Founding Fathers used to pen the Constitution may have dried along with the dreams of equal ideas to barter and negotiate within our society's marketplace of ideas. (2) In recent years this ink has begun to fade, and the marketplace has closed its doors to the fringes of First Amendment protection.

While someone who shouts fire in a crowded theater has never been popular in the marketplace of ideas, (3) the Chaplinsky v. New Hampshire (4) decision began carving out entire classes of words, expressions, symbolism, and speech from the marketplace of ideas with a two-tier First Amendment theory. (5) The first tier is protected First Amendment speech that adds value to the marketplace of ideas. (6) The second tier, composed of unprotected speech, "[is] certain well-defined and narrowly limited classes of speech... [including] the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (7)

In 2003, Virginia v. Black (8) sought to scale back this two-tiered theory by holding that it is not unpopular speech that should be proscribed by state statute but only speech with intent to threaten. (9) Virginia focused on the issue of cross burning and held that a blanketed ban on all cross burning was unconstitutionally overbroad in that the statute limited not only unprotected speech but protected speech as well. (10) Virginia held that it was not the Court's job to judge morality or punish unpopular opinion, but to proscribe speech when speech went further than mere advocacy into the realm of true threats. (11) To determine whether cross burning constituted a true threat, the Court looked to the historical context of cross burning and found that cross burning may be political speech protected under the First Amendment. (12)

The marketplace of ideas, similar to many other markets, has moved online in the digital age. However, while many new markets face threats of hacking or data breach, the marketplace of ideas faces new First Amendment challenges to its afforded protection. James Madison and our Founding Fathers may never have envisioned the growth of the digital age and the new struggles between the chilling effects of First Amendment suppression and protecting victims of online threats, but such has been the theme in recent online First Amendment controversy.

In Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, context proved key and true threat analysis found its way to the Internet when the Ninth Circuit used a totality-of-circumstances analysis to determine that an objective reasonable person can find a pro-life website depicting abortion doctors as wanted posters was a true threat to the doctors' lives. …

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