12/02/2014 07:00 pm ET Updated Feb 01, 2015

Why We Need Judicial Engagement to Protect Internet Speech -- and the Rest of Our Rights, Too

On Monday, the Supreme Court heard oral argument in Elonis v. U.S., an important case involving speech on the Internet. Elonis presents a tough constitutional question. Fortunately, because the right to speak freely is one of the few constitutional rights that the Court consistently protects, the Court can be expected to earnestly pursue the answer to that question rather than punting it back to the political branches -- as it too often does.

Anthony Elonis was convicted under a federal statute that criminalizes threatening statements. Elonis' statements, which involved his estranged wife, appeared on Facebook -- some took the form of violent rap lyrics. The judge instructed the jury that the government need not prove that Elonis intended to communicate a "true threat" in order to convict him.

The question for the Court: Does the First Amendment require the government to prove that Elonis intended his comments to be understood as a threat of unlawful violence?

Because the meaning of words depends largely upon the context in which they are used, proscribing threats without requiring the government to prove intent to communicate a genuine threat to commit an act of unlawful violence may sweep in speech that lies within the ambit of the First Amendment's protections. Thus, the Court in Virginia v. Black (2003) defined constitutionally unprotected "true threats" as "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."

But lower courts are divided on whether Black actually requires the government to prove subjective intent. In Elonis' case, the judge instructed the jury that it could convict him if "a reasonable person would foresee" that his statements would be understood as threats. It remains to be seen how the Court will respond to Elonis' conviction, which has serious implications for the freedom to speak on the Internet, where communications are diverse, dynamic, and easily taken out of context.

One thing that we are not likely to see, however, is the Court reasoning that because the First Amendment does not expressly refer to violent rap lyrics and line-drawing is difficult, courts should simply defer to the other branches and uphold Elonis' conviction. That is not how the Court handles free speech cases -- even difficult ones. And that is because speech is regarded as a "fundamental" right entitled to meaningful judicial review. In cases involving "fundamental" rights, the Court makes a genuine effort to determine the truth concerning the constitutionality of the government's means and ends, remains neutral, and makes the government prove its case with record evidence. Such judicial engagement ensures that our rights are given effective protection.

But unfortunately judicial engagement is the exception, not the rule. Few constitutional rights are deemed "fundamental" -- just those spelled out in the Bill of Rights and a handful of others that the Court has recognized on an ad hoc basis. In cases involving other constitutionally protected rights (disparaged as mere "liberty interests"), courts apply a toothless, truthless standard called the "rational basis test." Judges applying this standard presume that the government is acting constitutionally, make no effort to discover the government's true ends or determine whether they are constitutionally legitimate, accept factual assertions for which the government has no evidence, and will even help invent justifications for the government's actions. To call this "judging" is to make nonsense of words.

The result? Our right to speak freely is protected, but our rights to earn an honest living, acquire and use property, and enjoy any number of activities that make up our daily lives and do not violate the rights of others are left to the mercy of bureaucratic busybodies and entrenched special interests. This despite the fact that the amended Constitution knows no second-class rights, any more than second-class citizens.

The Framers established an independent judiciary to make tough decisions about what the Constitution requires. Elonis' speech deserves the exacting judicial review that is required to make the First Amendment's free speech protections effective -- and he will likely receive it. But in order for all Americans to enjoy the full measure of freedom that the Constitution is designed to secure, judicial engagement must be the rule, rather than the exception.