The Obama administration continues work at repressing free speech by criminalizing some of it. At best Obama is passive aggressive toward free speech protections. In the Elonis case we see Obama aggressively attacking free speech by going after a particularly obnoxious man.

Although this case dealt with the perceived threat to particular individuals, the establishment of a lower standard for the criminalization of speech could have been easily expanded. This will not be the last such attempt. In the end, the greatest losses to liberty come from the government. This week the Roberts court avoided a fatal shot, but Obama’s attempt came close enough to part our constitutional hair. Unless we become more vigilant, the next attempt by the Federal government could prove more lethal to liberty.

Anthony Elonis, 31, was convicted for Facebook postings that were deemed “threats of violence” against his former wife and former colleagues. Here’s the beginning: After his wife left him and he was fired from his job, Anthony Elonis began to post rap lyrics containing graphic violent language and imagery. For these juvenile and degrading postings, Elonis adopted the rap-style nom de plume “Tone Dougie,” to be his online persona while repeatedly disclaiming the lyrics as “fictitious” and not meant to bear “resemblance to real persons.” While he said “I’m doing this for me. My writing is therapeutic,” others saw the postings as intentionally threatening.

There is no question Elonis has the mentality of an angry toddler. But the Obama administration charged him with five counts of engaging in interstate commerce ergo “any communication containing any threat … to injure the person of another.” The administration argued (and the trial court and appellate courts agreed) that prosecutors need not show that Elonis intended these rap songs as threats. Rather, it argued that the government could criminalize any communications that a reasonable person deemed a threat.

That effectively flipped the standard from looking at the intent of the individual to how the statement is received or perceived. In other words, the crime is not the crime but the way someone else felt about it.

Don’t laugh too hard or too long at the violence the idea does to the American Constitution and the entire American idea of guilty until proven innocent. The trial court judge and the three judges on the appeal agreed that Elonis was guilty because he couldn’t prove he was innocent. That’s not the American way.

Same for the baker who didn’t want to bake a wedding cake for two gay guys because the baker said it violated his religious idea that only a man and a woman could marry. Look at it this way. The gay’s could have demanded the baker polish their shoes or do something else he didn’t want to do. The issue is who is free to order whom around? In the case of the baker it was him being ordered to do something he didn’t want to do. The narrow issue is whether or not he could refuse to bake them a cake but the bigger issue gets involved with the idea that some people can use other’s as slaves. Who is free to do what? How much power can be exerted against an individual by another and when should government keep out of the lives of individuals even when they are in business?

Clearly government goes wrong when it demands a baker bake a cake when he doesn’t want to do it. It’s a cake, not a lifesaving drug. The gay couple could have moved along just as a gay man should be free to not marry a woman is he doesn’t want. It’s none of the government’s business, especially if the issue is a cake. The two gay guys could have just as easily bought their two bridegroom statues and put them on their cake themselves. Or can the government force a gay man to marry a woman? Unless and until a baker can refuse to bake a cake the gay community is in danger. Government may force them to marry people they don’t want to marry.

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