The University of New Hampshire Law Review
Incitement, Threats, and Constitutional Guarantees: First Amendment Protections pre- and post-Elonis
[Excerpt] "While the First Amendment to the United States Constitution protects the freedom of expression, individuals issuing threats or advocating illegal conduct may be subject to punishment. What constitutes proscribable speech has long been evolving, and the recent jurisprudence suggests that First Amendment protections are more robust for advocacy of illegal conduct than for threats. Elonis v. United States provided the Court with a golden opportunity to clarify First Amendment threat jurisprudence; however, those hoping for an illuminating analysis cannot help but be disappointed. Part I of this Article discusses the developing First Amendment jurisprudence regarding the regulation of incitement, focusing on how constitutional protections for such speech have increased over time. Part II discusses the constitutional limitations on the regulation of threats, noting the Court's consistent refusal to address what kind of subjective intent is necessary in order for an individual to be convicted of having made a threat. Part III focuses on Elonis in particular, explaining how the case wasted the opportunity to clarify a number of First Amendment issues. The article concludes by pointing to several areas the Court may be forced to address in the not-too-distant future, including some of the confusions created by the Elonis opinion itself."
Mark Strasser, Incitement, Threats, and Constitutional Guarantees: First Amendment Protections pre- and post-Elonis, 14 U.N.H. L. REV. 163 (2016), available at http://scholars.unh.edu/unh_lr/vol14/iss1/5