United States Supreme Court decides Facebook true threats case

The Supreme Court has issued its long-awaited opinion in Elonis v. United States, the Facebook threats case. In a narrow opinion by Chief Justice John Roberts, the Court overturned the conviction of Anthony Elonis, who allegedly threatened his ex-wife and federal law enforcement agents through rap lyrics he posted to his Facebook page under personal hip-hop moniker “Tone Dougie.”

The government closed oral argument by emphasizing that “what [Elonis] thinks doesn’t matter.” The Supreme Court, on the other hand, said it does. Specifically, the Court held that in order to successfully prosecute a defendant under the federal interstate threats statute, 18 U.S.C. 875(c), the government must show that the defendant acted with a criminally culpable mental state beyond mere negligence. The Court rejected the notion that a criminal threats conviction could rest solely on proof that a hypothetical reasonable person would find that a statement amounted to a true threat.

The trouble with the opinion issued by the Court in Elonis — and with the current landscape of federal law on true threats — is that it remains unclear exactly what state of mind the law requires. The majority in Elonis expressly declined to decide whether recklessness is sufficient. Furthermore, section 18 U.S.C. 875(c) does not explicitly set forth a requisite mental state, so Elonis could trigger a legislative response by Congress. Lawmakers could shore up the language in 875(c) and explicitly define the mental state greater required for criminal threats convictions. The ball is in Capitol Hill’s court.

So what about the First Amendment?

The Court declined to address the First Amendment argument made by Elonis at trial and on appeal — that the Constitution requires the government to prove that the defendant specifically intended to threaten an identifiable person or group of persons when he communicated the threat. Justices Alito and Thomas chastised the majority for avoiding the constitutional question, but we saw this coming. When the Court granted certiorari in Elonis, it asked the parties to brief and argue the statutory interpretation question even though Elonis appealed solely on First Amendment grounds.

If there is anything we can infer about free speech jurisprudence from the Supreme Court’s holding in Elonis, it is that courts must look beyond the mere content of the purported threat and scrutinize the defendant’s behaviors for indicia of a criminal state of mind. Under Elonis, the hypothetical reasonable person may no longer be the sole arbiter of criminal speech determinations under 875(c). This standard provides some additional breathing space for threatening speech and heightens the importance of context. Nevertheless, artists, lawyers, and scholars are left wondering whether the First Amendment protects violence-laden speech uttered recklessly and without regard for foreseeable emotional and psychological harms to victims.

Brooks Fuller is a 3rd-Year Ph.D. student in the UNC School of Journalism and Mass Communication.


Student Thesis Examines Aereo Case

aereo_antenna_array1-640x425This semester I completed my master’s thesis, which was titled “Aereo, the Public Performance Right, and the Future of Broadcasting.”  As the title suggests, in the thesis I evaluated the Supreme Court’s recent decision in American Broadcasting Cos. v. Aereo, Inc., and reflected on how the decision stood to impact the future of copyright law and broadcasting.   

If you are unfamiliar, the dispute at the heart of the case started after a company called Aereo began transmitting broadcast content, without a license, over the Internet to paying subscribers.  Not surprisingly, a group of television broadcasters were quick to assert that Aereo’s conduct violated their right to perform copyrighted works publicly, one of the exclusive rights granted to copyright holders under the Copyright Act.  The broadcasters were concerned about Aereo because Aereo stood to impact their ability to earn revenue from retransmission consent agreements, which are agreements under which cable and satellite providers compensate broadcasters for the right to retransmit their signals.     

Aereo defended its actions by claiming it developed a system that permitted it to transmit broadcast content without violating the public performance right.  Under the system, Aereo used dime-sized antennas to capture and then save unique copies of television programs that were personal to each subscriber.  Because Aereo never transmitted copies of broadcast programs to more than one subscriber, Aereo contended it was transmitting private—not public—performances.  The company accordingly asserted that it did not violate the public performance right when it transmitted broadcast content over the Internet. 

The Supreme Court disagreed.  In a 6-3 decision written by Justice Breyer, the Court essentially held that Aereo performed works publicly because its system resembled cable systems, which “do perform publicly.”  In reaching its decision, the Court relied on the Copyright Act’s legislative history.  The term “legislative history” refers to the supporting documents Congress creates when enacting a piece of legislation to help explain the legislation. 

In the thesis, I wrote that the Court ultimately reached the correct outcome.  I, however, criticized the Court for overly relying on the Copyright Act’s legislative history.  As I asserted in the thesis, the Court could have reached the same outcome by clearly interpreting the text of the Copyright Act.  Doing so would have benefited the lower courts by providing them with increased guidance when facing questions regarding the public performance right in the future. 

In the thesis, I also analyzed Justice Scalia’s dissenting opinion.  Justice Scalia contended that the case should have been decided on the basis of secondary copyright liability.  Under such an approach, the question for the Court would have been whether Aereo violated copyright law by aiding its subscribers, who would be viewed as the direct infringers, in violating the law.  

I enjoyed writing about and dissecting the Court’s decision in American Broadcasting Cos. v. Aereo, Inc.  It was a challenging, but certainly worthwhile, topic for a thesis.  I am grateful for the help my committee members—Dr. Cathy Packer, Dr. Michael Hoefges, and Professor Deborah Gerhardt—provided throughout the process.

Kevin Delaney

Dual-degree student (master’s in mass communication/J.D.)


Media Law Student to Intern with Comcast

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Media law student Nick Gross will be a public policy intern for Comcast Corp. in Washington, D.C., this summer. Congratulations, Nick!

Nick is a first-year Ph.D. student in the UNC School of Journalism and Mass Communication and a graduate assistant assigned to the UNC Center for Media Law and Policy. 

Nick has a J.D. from the University of Miami School of Law.  He has worked as a legal research attorney for the Superior Court of California, Santa Clara County, and as a staff attorney with the Eleventh Circuit U.S. Court of Appeals in Atlanta, Ga.

This is the description of the Comcast position: “The Public Policy Intern will research and write on a variety of issues including cable, Internet, voice, wireless, and related topics.  The Public Policy Intern will focus on legislative and other Federal processes. All interns can expect to prepare briefing memos, talking points, comment summaries, and other written material, and may have opportunities to attend conferences and other events outside of the office.  Interns will work with management to determine the impact of federal actions on the organization, develop presentations and other written materials on findings, and act as an internal consultant to the government affairs teams.”


Center Staffer Makes Splash with Article in The Atlantic

Tori Ekstrand, the director of communications for the UNC Center for Media Law and Policy, wrote an article about web accessibility that was published in The Atlantic last week.

The article then quickly was picked up by PBS Media Shift’s Daily Best Reads blog (“The best stories across the web on media and technology”) and NPR’s All Things Considered.

Tori’s “Should Netflix be Accessible to the Deaf?” argues that the Americans With Disabilities Act (ADA) should apply to the Internet, including to sites like Netflix. Tori is an assistant professor in the UNC School of Journalism and Mass Communication. Her article was the result of her ongoing research about how the ADA does and should apply to the Internet. Great work, Tori!


Judge Thokozile Masipa visits UNC

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On Tuesday, April 7, I had an opportunity to speak with the Honorable Thokozile Matilda Masipa, a judge in the Gauteng Division of the High Court of South Africa.  Many know her as the judge who presided over the high profile Oscar Pistorius murder trial, but it’s the story of how she overcame seemingly insurmountable odds to become the second black woman admitted to the bench in South Africa that inspires me. 

Judge Masipa grew up in the poor, black township of Soweto under the South African apartheid regime. Opportunities for minorities were almost nonexistent.  Determined to help others, Judge Masipa pursued a degree in social work and then later spoke out against injustices as a journalist.  She once was arrested and jailed overnight for protesting the government’s attempts to suppress the media. 

Participating in the anti-apartheid movement sparked Judge Masipa’s interest in the law.   The full-time journalist, wife and mother spent 10 years completing her law degree. 

She quickly earned the respect of her colleagues and took on more and more challenging cases as a lawyer. In 1998, five judges nominated her, and she was appointed to the bench. It was not her plan to become an activist or a judge.  She explained, “[B]ecoming an advocate is not a choice, it is imposed on you.  It’s the environment that you grow up in. You know that if you do not do something, you will perish.”

Judge Thokozile Masipa is a former student of Kenneth Broun, professor emeritus at UNC School of Law.  She delivered the 2015 William P. Murphy Distinguished Lecture on Monday, April 6.  Many thanks to Professor Broun and UNC for bringing such a distinguished guest to our campus!

Chanda Marlowe is a 2L at the University of North Carolina School of Law