Student Suspended for Tweet Gets a Trial

Judge grants student suspended for two word tweet a trial“Actually yes.” Those two words got an honors student suspended, kicked out of school, and given the choice: withdraw or be expelled. Now that student has sued the school and the judge has ruled the case is going to trial. (more…)

Michigan Supreme Court Strikes Down Mandatory Minimum Sentencing Guidelines

Michigan Supreme Court strikes down mandatory minimum sentencing guidelinesLast week, the Michigan Supreme Court struck down that part of the state’s sentencing guidelines that requires judges to use facts not given to the jury to set mandatory minimum sentences. It’s a decision that could fundamentally change how criminal law works in Michigan. (more…)

Suspended for Facebook Posts? One Court Says No.

Suspended for Facebook Post? One Court Says No.Can a school suspend a student for angry posts on Facebook? Courts across the country have asked that question and come to different answers. Earlier this year one federal judge in Portland, Oregon said no. (more…)

Married Without Children: Michigan Approves Adoption Discrimination

Michigan allows LGBT adoption discriminationThe Supreme Court just granted marriage equality to gay couples across the nation. The decision has many gay marriage advocates preparing for the end of a hard battle. But the Michigan Legislature has shown that when it comes to LGBT adoption discrimination, the fight is far from over. (more…)

SCOTUS Says Gays Have Fundamental Right to Marriage Equality

SCOTUS Grants Marriage EqualityThe decision that thousands of Michigan couples have been waiting for for months, even years, has finally arrived. On June 26, 2015, the Supreme Court of the United States ruled that gay and lesbian couples have a fundamental right to marriage equality. Here’s a look at the decision. (more…)

SCOTUS Dodges Facebook First Amendment Ruling

SCOTUS Dodges Facebook Free Speech DecisionOn June 1, 2015, the Supreme Court of the United States ruled on whether a federal court could convict a man based on his threatening Facebook rap posts. But the Court dodged the First Amendment issue of Facebook free speech, disappointing some civil rights advocates.

In Elonis v United States, the Supreme Court of the United States (SCOTUS) had a chance to set the record straight on whether Facebook posts were protected speech and if they could be used in criminal prosecution. Instead, it issued a ruling on the need for all federal crimes to include criminal intent. The ruling is disappointed some civil rights advocates, who find themselves in the unusual situation of agreeing with Justice Clarence Thomas.

The Case

Douglas Elonis, the rapper known as Tone Dougie, has a habit of posting angry rap lyrics on Facebook when bad things happen to him. When his wife left him and took their children with her in 2010, he began posting threatening photos and “lyrics” about his boss, co-workers, wife, and even an FBI agent. He was fired, which only fueled more posts. His wife got a protection order, to which he responded (page 4):

“Fold up your [protection-from-abuse order] and put it
in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
that was improperly granted in the first place
Me thinks the Judge needs an education
on true threat jurisprudence
And prison time’ll add zeros to my settlement . . .
And if worse comes to worse
I’ve got enough explosives
to take care of the State Police and the Sheriff ’s Department.”
Among these posts, Elonis included disclaimers that these posts were “ficticious” and had no intentional “resemblance to real persons.” The federal prosecutors disagreed and charged him with violating a federal law prohibiting the interstate transmission of “any communication containing any threat . . . to injury the person of another.” Elonis responded that these were not true threats, merely his First Amendment-protected free expressions.

The Ruling

Rather than addressing whether Facebook posts could amount to true threats, SCOTUS instead focused on the federal statute. A 8-1 majority said the biggest problem with this case was that Elonis’s conviction was based on how a “reasonable person” would receive his Facebook posts, instead of anything having to do with his intent to post them. The Court said a defendant had to have some “awareness of wrongdoing.” It said the statute could only apply if a defendant “transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” Reckless disregard of a statement’s threatening nature may be enough.

The Problem

This ruling doesn’t settle the question of Facebook free speech, nor does it actually establish a standard to apply in future cases. According to Justice Thomas’s dissent (page 31):

“This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”

It also puts civil rights advocates up against each other. Steven R. Shapiro, legal director of the American Civil Liberties Union, said:

“[F]or centuries [the law] required the government to prove criminal intent before putting someone in jail. That principle is especially important when a prosecution is based on a defendant’s words. . . . The Internet does not change this long-standing rule.”

But First Amendment scholar Clay Calvert was hoping for more:

“It’s really highly disappointing. It didn’t clarify much in the long run.”

Instead, legal experts will continue to debate the appropriate protections for imprudent Facebook users who use a public platform to vent their threatening frustrations. Elonis will get a new trial where it will likely be shown that his disclaimers demonstrated his knowledge that his posts were threatening. And eventually, the Supreme Court will have to rule again on the issues of Facebook Free Speech.

Lisa J. Schmidt is a criminal defense lawyer with Schmidt Law Services, PLLC, in Ferndale, Michigan. She defends people charged with everything from traffic tickets to criminal sexual conduct. If you or someone you know has been charged with a crime, contact Schmidt Law Services today for a free consultation.

What You Missed At Last Week’s Special Education Panel

ACLU School to Prison Pipeline Special Education PanelOn May 28, 2015, dedicated students’ advocates, parents, and teachers gathered to learn about what they could do to help special education students get the educational help they need. If you missed it, here’s a quick summary. (more…)

Join the Special Education Rights Discussion on 5/28/15

ACLU Special Needs Panel finds ways to make graduation possible.One week from tonight, Lisa J. Schmidt of Schmidt Law Services will be involved with a panel on Special Education and the School to Prison Pipeline hosted by the ACLU of Michigan. Parents, come find out what you should expect from your school, and what your student’s rights are. (more…)

Expelled at 4? Preschools Look Ways to Reduce Misbehavior

Schools expel preschoolers rather than deal with traumaImagine getting a call in the middle of the day. Your 4 year old needs to come home. He (or she) has been hitting or biting other students and has been expelled. What would you do? (more…)

Ann Arbor Schools Ban Guns on Premises

Guns banned from Ann Arbor SchoolsAn Ann Arbor Schools choir concert turned hairy after a family member openly carried a gun into Pioneer High School. In response to the community’s concerns, the school board recently approved a policy declaring school property a “dangerous weapon-free” zone. (more…)