Constitutional Law

The Limits of Free Speech

December 8, 2014
First Amendment, Internet, Social Media

Paul Overbee, MJLST Editor

A large portion of society does not put much thought into what they post on the internet. From tweets and status updates to YouTube comments and message board activities, many individuals post on impulse without regard to how their messages may be interpreted by a wider audience. Anthony Elonis is just one of many internet users that are coming to terms with the consequences of their online activity. Oddly enough, by posting on Facebook Mr. Elonis took the first steps that ultimately led him to the Supreme Court. The court is now considering whether the posts are simply a venting of frustration as Mr. Elonis claims, or whether the posts constitute a “true threat” that will direct Mr. Elonis directly to jail.

The incident in question began a week after Tara Elonis obtained a protective order against her husband. Upon receiving the order, Mr. Elonis posted to Facebook, “Fold up your PFA [protection-from-abuse order] and put it in your pocket […] Is it thick enough to stop a bullet?” According the Mr. Elonis, he was trying to emulate the rhyming styles of the popular rapper Eminem. At a later date, an FBI agent visited Mr. Elonis regarding his threatening posts about his wife. Soon after the agent left, Mr. Elonis again returned to Facebook to state “Little agent lady stood so close, took all the strength I had not to turn the [expletive] ghost. Pull my knife, flick my wrist and slit her throat.”

Due to these posts, Mr. Elonis was sentenced to nearly four years in federal prison, and Elonis v. United States is now in front of the Supreme Court. Typical state statutes define these “true threats” without any regard to whether the speaker actually intended to cause such terror. For example, Minnesota’s “terroristic threats” statute includes “reckless disregard of the risk of causing such terror.” Some states allow for a showing of “transitory anger” to overcome a “true threat” charge. This type of defense arises where the defendant’s actions are short-lived, have no intent to terrorize, and clearly are tied to an inciting event that caused the anger.

The Supreme Court’s decision will carry wide First Amendment implications for free speech rights and artistic expression. A decision that comes down harshly on Mr. Elonis may have the effect of chilling speech on the internet. The difference between a serious statement and one that is joking many times depends on the point of view of the reader. Many would rather stop their posting on the internet instead of risk having their words misinterpreted and charges brought. On the other hand, if the Court were to look towards the intent of Mr. Elonis, then “true threat” statutes may lose much of their force due to evidentiary issues. A decision in favor of Mr. Elonis may lead to a more violent internet where criminals such as stalkers have a longer leash in which to persecute their victims. Oral argument on the case was held on December 1, 2014, and a decision will be issued in the near future.

Anti-Cyberbullying State Statutes Should Prompt a Revisiting of the Communications Decency Act

September 26, 2014
Cyber Security, First Amendment, Internet, Social Media

Nia Chung, MJLST Staff

Cyberbullying comes in varying forms. Online outlets with user identification features such as Facebook and MySpace give third party attackers a platform to target individuals but remain identifiable to the victim. The transparency of identification provided on these websites allows victims the ability of possible redress without involving the Internet Service Providers (ISPs).

In February 2014, Bryan Morben published an article on cyberbullying in volume 15.1 of the Minnesota Journal of Law, Science and Technology. In that article Mr. Morben wrote that Minnesota’s new anti-cyberbullying statute, the “Safe and Supportive Minnesota Schools Act” H.F. 826 would “reconstruct the Minnesota bullying statute and would provide much more guidance and instruction to local schools that want to create a safer learning environment for all.” Mr. Morben’s article analyzes the culture of cyberbullying and the importance of finding a solution to such actions.

Another form of cyberbullying has been emerging, however, and state initiatives such as the Safe and Supportive Minnesota Schools Act may prompt Congress to revisit current, outdated, federal law. This form of cyberbullying occurs on websites that provide third parties the ability to hide behind the cloak of anonymity to escape liability for improper actions, like 4chan and AOL.

On September 22, 2014, British actress Emma Watson delivered a powerful U.N. speech about women’s rights. Less than 24 hours later, a webpage titled “Emma You Are Next” appeared, displaying the actress’s face next to a countdown, suggesting that Ms. Watson would be targeted this Friday. The webpage was stamped with the 4chan logo, the same entity that is said to have recently leaked celebrity photos of actresses including Jennifer Lawrence, this past summer. On the same website, one anonymous member responded to Ms. Watson’s speech by stating “[s]he makes stupid feminist speeches at UN, and now her nudes will be online.” Problematically, the law provides no incentive for such ISPs to remove such defamatory content because they are barred from liability by a federal statute. The Communications Decency Act, 47 U.S.C. § 230, provides, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Essentially, this provision provides ISPs immunity from tort liability for content or information generated on a user-generated website. Codified in 1996, initially to regulate pornographic material, the statute added sweeping protection for ISPs. However, 20 years ago, the internet was relatively untouched and had yet to realize its full potential.

Courts historically have applied Section 230 broadly and have prevented ISPs from being held liable for cyberbullying actions brought from victims of cyberbullying on its forum. For example, the Ninth Circuit upheld CDA immunity for an ISP for distributing an email to a listserv who posted an allegedly defamatory email authored by a third party. The Fourth Circuit immunized ISPs even when they acknowledged that the content was tortious. The Third Circuit upheld immunity for AOL against allegations of negligence because punishing the ISP for its third party’s role would be “actions quintessentially related to a publisher’s role.” Understandably, the First Amendment provides the right to free exchange of information and ideas, which gives private individuals the right to anonymous speech. We must ask, however, where the line must be drawn when anonymity serves not as a tool to communicate with others in a public forum but merely as a tool to bring harm to individuals, their reputations and their images.

In early April of this year, the “Safe and Supportive Minnesota Schools Act was approved and officially went into effect. Currently, http://www.cyberbullying.us/Bullying_and_Cyberbullying_Laws.pdf have anti-cyberbullying statutes in place, demonstrating positive reform in keeping our users safe in a rapidly changing and hostile online environment. Opinions from both critics and advocates of the bill were voiced through the course of the bill’s passing, and how effectively Minnesota will apply its cyberbullying statute remains to be seen. A closer look at the culture of cyberbullying, as is discussed in Mr. Morben’s article, and the increasing numbers of anti-cyberbullying state statutes, however, may prompt Congress to revisit Section 230 of the Communications Decency Act, to at least modestly reform ISP immunity and give cyber-attacks victims some form of meaningful redress.

Oops! They Did It Again . . .

February 4, 2014
First Amendment, Healthcare

Roma Patel, MJLST Staff
The Affordable Care Act is making its way back to the Supreme Court, this time with a different mandate under judicial scrutiny. In November the Court announced it would hear Sebelius v. Hobby Lobby Stores, Inc., regarding the comprehensive, yet controversial, health care law. Unlike National Federation of Independent Business v. Sebelius, where the Court upheld the ACA’s individual mandate to buy health insurance as a constitutional exercise of Congress’s taxing power, the Hobby Lobby case involves a religious liberty challenge against the ACA’s requirement that employers provide insurance coverage for contraception and some drugs that some believe cause abortions.

Hobby Lobby is a private corporation that owns arts-and-crafts stores throughout the country. The company is owned by the Green family, Evangelical Christians who believe that life begins at fertilization. Because Hobby Lobby is a for-profit employer of more than 50 people, the ACA will require it to provide insurance coverage of a full range contraception.

In June 2013 the U.S. Court of Appeals for the 10th Circuit ruled in favor of Hobby Lobby, stating that corporate entities are entitled to religious freedom. The 3rd and 6th Circuits split from the 10th Circuit and held that for-profit corporations do not have religious rights on two other cases challenging the ACA. On September 19, both Hobby Lobby and the 3rd Circuit case, Conestoga Wood Specialties Corp. v. Sebelius, were appealed to the Supreme Court.

Commentary on the Hobby Lobby case can best be described as dicey. Conservative and religious bloggers have hurled phrases such as, “atheist bullies” and “an attack on First Amendment rights” while the left cry, “war on women” and “crazed bible thumpers.” The broader issues at stake here are understandably divisive and extremely personal.

Amidst the often-exacerbated discussion of the case and the issues surrounding it is a desperate need to set the record straight: this is not a First Amendment issue, per se. What the Supreme Court will decide is Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.

Hobby Lobby argues the provision forces it to pay for methods of contraception which the owners find religiously immoral; namely the Plan B morning-after pill, an emergency contraceptive called Ella, and two different kinds of intrauterine devices (IUDs) that may sometimes work by preventing a fertilized egg from implanting into the uterus.

Counsel for the government argues that rights to religious freedoms do not apply to for-profit corporations and that health decisions should be between a woman and her physician, there is no place to an employer to impose his or her personal beliefs on someone else’s.

Amicus briefs have been flooding the Supreme Court’s doors defending both sides of the issue. Questions of corporate personhood and whether the Court’s decision could open a huge hole in the longstanding history of religion and the practice of medicine remain relevant. For example, some religions don’t believe in blood transfusions, so does that mean business owners with such beliefs can refuse to provide insurance coverage for an employee’s transfusion? Religious beliefs are personal and deeply subjective, how can health policy makers expand on patient coverage without being at odds with subjective beliefs?

The ultimate question is whether the ACA unduly infringes on the right to religious expression or if it pursues the least restrictive means of enforcing its provision on contraception with regard to the First Amendment. The result of Hobby Lobby will be close and the case will be one to watch.

Are DNA Databases the Future of Our Criminal Justice System?

November 14, 2012
Constitutional Law, Forensics, Law Enforcement

by Jennifer Nomura, UMN Law Student, MJLST Staff

DNA is a key piece of evidence in criminal trials. But despite what we see on Law and Order and CSI, obtaining a DNA sample from potential suspects isn’t always easy. In an episode of a popular crime-solving TV show, detectives are shown following a number of potential suspects. The detectives pick up used tissues and discarded cigarettes from a long list of suspects in order to obtain DNA samples from each of them. Is that the criminal justice system of the future? A system where a thrown away coffee cup could be used to obtain a DNA sample from an individual, without them even knowing?

In the murder investigation of 10-year-old Jessica Ridgeway, DNA evidence is expected to play a key role in the trial. DNA of the suspect, 17-year-old Austin Sigg, was found on Ridgeway’s backpack, and Ridgeway’s DNA was found in Sigg’s home.

The prosecution in the Ridgeway case is expected to use the DNA recovered from the backpack and Sigg’s home to link him to the murder. The defense is expected to argue that the evidence recovered is unreliable. A mainstream news story, “DNA Will Play Pivotal Role in Ridgeway Case” discusses how DNA evidence can be unreliable by using the example that an innocent sneeze on the backpack could lead someone to be a murder suspect. That is an extreme example, but maybe it raises a valid point.

David H. Kaye, in The Science of DNA Identification: From the Laboratory to the Courtroom (and Beyond), raised concern over the obtainment and future use of DNA in the criminal justice system. Kaye discussed that while DNA can lead to a guilty suspect being put in jail, we should be cautious about how detectives obtain DNA from suspects and what they do with the DNA afterwards. Kaye raises questions such as: how did the police obtain a DNA sample from the suspect, was DNA obtained from other suspects during the investigation (ones who were ultimately decided to be innocent), and will the DNA sample from those other suspects be put into a criminal database to potentially be used in future investigations? These are questions that we should keep in mind as our criminal justice systems evolves.

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