Strasser on Incitement, Threats, and Constitutional Guarantees: First Amendment Protections Pre- and Post-Elonis

Mark Strasser, Capital University Law School, has published Incitement, Threats, and Constitutional Guarantees: First Amendment Protections Pre- and Post-Elonis at 14 University of New Hampshire Law Review 163 (2016). Here is the abstract.

The First Amendment‘s protection of free expression does not extend to true threats. In Elonis v. United States, the Court had a golden opportunity to clarify true threat jurisprudence, especially in light of the standards that must be met when the state seeks to punish other (possibly terrifying) language such as that involved in incitement. Regrettably, the Elonis Court not only made the jurisprudence murkier but also cast into doubt the mens rea requirements of other federal statutes. The Court has almost guaranteed confusion in the lower courts about a variety of matters and has failed to take advantage of a great opportunity to provide direction with respect to the regulation of internet postings.

The full text is not available from SSRN.