Ranting is not a crime.

• Author: Emord, Jonathan W.
• Position: AMERICAN JUSTICE

WHEN CONSTRUED in accordance with its plain and intended meaning, the First Amendment disarms government of any power whatsoever over speech and press, but sometimes speech exceeds the realm of communication and merges with criminal acts in the form of fraud, conspiracy, or assault. When that merger with action takes place, the law can punish the crime without proscribing the speech. In other words, those who say the very same words without evidence of an intent to effectuate fraud, conspiracy, or assault remain blameless under the law, free to speak even though their speech is vile.

Because the state is quick to prohibit speech that offends those in power, the Federal courts are essential guardians of the First Amendment, needed as an independent check to ensure that speakers are not punished in the absence of proof of a specific intent to commit a crime. The object of law thus is against the crime, not the speech per se, as the intent to do harm becomes the basis for arrest. The case of Elonis v. United States--now before the Supreme Court--calls upon the Court to reaffirm this distinction and avoid allowing the state to criminalize speech that offends but does not rise to the level of criminal actions.

The statements made by Anthony Elonis against his estranged wife Tara and others are reprehensible and frightening to Tara and her children, but there is no evidence in this case that Elonis took a single step to effectuate the threats he made. While sufficient to alert authorities to monitor Elonis' movements, absent proof that he intended to effectuate the threats, his speech is void of that link to action that must be the basis for arrest if we are to preserve a free society. Consistent with the First Amendment, Elonis' words alone do not justify the deprivation of liberty in the form of the 44-month prison sentence he received.

Much as we rightfully loath speech which places others in fear, the inherent subjectivity of speech denies us a credible basis for assuming that the words are more than sick prose until that moment arises when the speaker evidences a specific intent--either by purchase of a weapon or ammunition, tracking of a victim (stalking), or articulation of clear steps by which he or she will bring about injury to the victim. Rants that are ugly, threatening, or vulgar may cause intended victims to experience fear but, until such time as a specific intent to commit a crime is manifested, those repulsive statements still...