Cultivated Compendium

SCOTUSBlog's Amy Howe reports that, after oral argument in the U.S. Supreme Court today, there is no clear path for victory for Anthony Elonis or the federal government in a case testing the First Amendment boundaries of "true threats." At issue is whether Elonis' criminal liability for his violent, rap-like Facebook posts should be judged by whether he intended to place his ex-wife, an FBI agent and others in fear or if a reasonable person would perceive his posts as truly threatening.

Whether a subjective standard would actually protect more speech is an open question. In fact, Howe notes, "Justice Sonia Sotomayor was puzzled about whether there was actually any difference between the two standards. If you can infer someone’s state of mind from the circumstances 'of how and what was said in words,' she asked, isn’t the jury really looking at what a reasonable person would think anyway?"

Chief Justice John Roberts asked if the government's standard might result in prosecutions for violent rap lyrics and "did not appear" satisfied by the government's answer that rap artists wouldn't face prosecution because they are in the business of entertainment, Rowe further reports.

Justice Elena Kagan suggested a middle ground of a recklessness standard.

There have been a flood of misdemeanor cases in American courts because of tough-on-crime legislation and tough policing, The Wall Street Journal's John R. Emshwiller and Gary Fields report. The result has been assembly lines in court. Just minutes are spent adjudicating the cases and defendants, who have a constitutional right to legal counsel, often are not provided lawyers. The U.S. Supreme Court has ruled that a misdemeanor defendant facing a potential jail sentence has the right to a lawyer, WSJ reports, but "what that means for the nation’s crowded courts is a topic of debate among judges around the country." Jean Hoefer Toal, chief justice of the South Carolina Supreme Court, told the WSJ her state doesn't have the money to provide lawyers in every misdemeanor case as envisioned by the U.S. Supreme Court "and that chief justices from other states have told her the same."                 

The Washington Post's Juliet Eilperin and Jerry Markon report that the reason parents of "dreamer" children, who had been brought into the country illegally and had been granted temporary relief under the president’s 2012 Deferred Action for Childhood Arrivals program, weren't included in President Obama's executive action protecting many immigrants from deportation is because " lawyers from the Department of Homeland Security, the Justice Department and the White House examined the legal arguments and decided against it." The reasons the governmental lawyers gave for not including parents of "dreamers" were: "First, even though DACA recipients are not being deported at the moment, 'they unquestionably lack lawful status in the United States.' Second, doing so 'would represent a significant departure from deferred action programs that Congress has implicitly approved in the past.'"

The Los Angeles Times' David G. Savage reports that President Obama's use of executive action to shield immigrants from deportation won't just raise the ire of Congressional Republicans: "By claiming the power to forge ahead based on his executive authority, the president may well lose the one conservative he still really needs: Chief Justice John G. Roberts Jr." Savage wonders if Obama's immigration action could influence how Roberts views the latest challenge to the Affordable Care Act: "At issue is whether the administration must abide by one provision in the healthcare law, which says subsidies may be paid to those who enrolled in state health exchanges, or whether the president can extend those benefits to include people who signed up on the federally run exchange."

FAA Administrator Michael Huerta said today on CNN that his agency is planning the integration of drones into American airspace in stages, "starting with lower-risk uses and then moving on to other applications," Politico's Jennifer Shutt reports.

Journalism professor Will Nevin writes about the U.S. Supreme Court case, United States v. Elonis, that'll be heard in oral argument this week. At issue is whether a conviction for making "true threats" on-line requires that the speaker subjectively intended the threat or if a reasonable person would objectively view their speech as a threat. Anthony Elonis says he was writing rap songs and satire instead of wanting to make his estranged wife, law enforcement, coworkers and others fear for their safety.

Matthew D. Bunker, a professor and media law expert in the University of Alabama's College of Communication and Information Sciences told colleague Nevin that true-threat jurisprudence is "'not a fully developed area of the law. There are a few broad pronouncements from the Supreme Court, but I don't think the court has worked out the intricacies of the doctrine.'" Ronald Krotoszynski, a constitutional law professor at the University of Alabama School of Law, asked why Elonis should escape liability for threats made through speech when he would face liability for brandishing a gun, but Woodrow Hartzog, an associate professor and media and privacy law expert at Samford University's Cumberland School of Law, warned that a ruling against Eloni could limit more speech than is necessary.

Two bans on same-sex marriage were struck down yesterday in Mississippi and Arkansas. According to the Associated Press' Emily Wagster Pettus, U.S. District Judge Carlton Reeves granted a preliminary injunction against Mississippi's statutory and constitutional bans on same-sex marriage. According to SCOTUSBlog's Lyle Denniston, U.S. District Judge Kristine G. Baker struck down Arkansas' ban even though the state officials said the issue was closed by a 2oo6 ruling from the Eighth Circuit, which has jurisdiction over Arkansas. Baker and a judge in Missouri "found that the precedent was not controlling, because the 2006 decision was based on other legal grounds and also hasd been overtaken by more recent constitutional developments," Denniston reports.

A sharply divided New York Court of Appeals ruled that a golf course owned by the Seneca Indian Nation doesn't have sovereign immunity shielding it from lawsuits, according to an AP report. The builder of the golf course, which is close to Niagara Falls, has sued over money it says it is owed on the course's construction contract. The majority held that the corporate entity, a wholly owned subsidiary that owns the golf course, is not immune from suit because it can't bind tribal money and the Senecas don't own the golf course land. The dissent said there was no rational basis to distinguish the subsidiary from its corporate parent, which is an arm of the tribe and does have immunity.

The Wall Street Journal's Jack Nicas and Andy Pasztor report that the Federal Aviation Administration is contemplating regulations for commercial drones that industry folks say will "essentially prohibit" industrial applications in pipeline inspections and crop monitoring. While the FAA has not released the proposed federal rules for integrating drones into American airspace, WSJ reports the rules "are expected to require operators to have a license and limit flights to daylight hours, below 400 feet and within sight of the person at the controls, according to people familiar with the rule-making process." Requiring pilot training for drone operators will curb commercial drone usage because it'll be harder to get legal status to use them, including for media usages like filmmaking, WSJ also reports.

A New York judge has ruled that the confession of the defendant in the Etan Patz case is admissible, ProPublica's Naveena Sadasivam reports. The defendant's lawyers argued that his confession to the murder of a little boy whose face was famously plastered on milk cartons is false. New York Supreme Court Justice Maxwell Wiley ruled that "Hernandez did have the mental capacity to waive his rights to have an attorney present and understood that he had the right to remain silent," ProPublica reports.