"We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prose�cutions under 18 U. S. C. �875(c)."

"Save two, every Circuit to have considered the issue�11 in total�has held that this provision demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context. The outliers are the Ninth and Tenth Circuits, which have concluded that proof of an intent to threaten was necessary for conviction. Adopting the minority position, Elonis urges us to hold that �875(c) and the First Amendment require proof of an intent to threaten. The Government in turn advocates a general-intent approach. Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for �875(c). All they know after to day�s decision is that a requirement of general intent will not do. But they can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough."

Writes Justice Thomas, the sole dissenter in Elonis v. United States (PDF) one of this morning's new Supreme Court cases.
Click for more �

"Is Milwaukee County DA interested in pursuing criminal libel prosecutions of his political critics?"

Asks Eugene Volokh, noting that John Chisholm made a bit of a veiled threat toward Governor Scott Walker: "As to defamatory remarks, I strongly suspect the Iowa criminal code, like Wisconsin�s, has provisions for intentionally making false statements intended to harm the reputation of others." That came in response to Walker's saying that the John Doe investigation "was really about people trying to intimidate people," "They were looking for just about anything," and "it was largely a political witch hunt."

Volokh says that Iowa, in fact, does not have a criminal libel law, but Wisconsin does. Is Chisholm serious?

Is DA Chisholm is trying to signal that he may begin using Wisconsin�s own criminal libel law against political figures � or commentators or journalists � who he claims are lying about him (or other political figures)?

Volokh finds "the use of criminal libel law in political disputes... troubling." I'll say. I mean, that was Walker's point � government using its power to intimidate political opponents � and Chisholm's instinct was to threaten to use government power to intimidate political opponents. Of course, that's a despicable chilling of free speech. In fact, it's chilly enough around here that, on proofread, I wondered whether I ought to be writing "threat" and "threaten."

"Chilling comment on Adam Liptak's NYT piece on the South Carolina employment benefits lawyer who focused attention the statutory text that might wreck Obamacare."

Liptak's article about Thomas M. Christina is titled "Lawyer Put Health Act in Peril by Pointing Out 4 Little Words":

�I noticed something peculiar about the tax credit,� he told a gathering of strategists at the American Enterprise Institute.... He pointed to four previously unnoticed words in the health care law... They seemed to say its tax-credit subsidies were limited to people living where an insurance marketplace, known as an exchange, had been �established by the state.�...

�Resistance is futile,� Mr. Christina said at the 2010 Washington conference, referring to state officials. �You can�t get re-elected if you turn down free money that would otherwise have been paid as tax credits to your citizens.�...

Mr. Christina did not anticipate that the Internal Revenue Service would in August 2011 propose and in May 2012 adopt regulations interpreting the law to allow subsidies in all 50 states, including those where the federal government ran the exchanges.

37 states did turn down the money and the feds stepped in and set up exchanges in those states and offering the subsidies even though these exchanges were not literally "established by the state." So now there's a case in the Supreme Court, to be argued tomorrow, which would take away the subsidies in those 37 states.

There are 709 comments on Liptak's article right now. I don't hold the NYT responsible for all the comments. I certainly don't vouch for what my commenters say, but I would take this out if I saw it in my comments. In fact, I'm only showing a screen shot because I don't want to create searchable text here:



There's only that one pushback comment from NYHuguenot � which itself goes too far � and it only arrived 11 hours after Cold's chilling remark, which has 11 thumbs up. I read Cold's comment in the middle of the night and hit the "flag" icon but I couldn't bring myself to check any of the options. "Inflammatory" and "Personal Attack" seemed closest but not precisely apt. I decided to blog about it here instead. It's evil to waft the suggestion of a violent attack. It might influence someone, though it's certainly not an imminent enough incitement to support arresting Cold. It's evil, but it's also ludicrous for Cold to project her political will � her desire to preserve the legislation � onto the seriously ill, as if they'll use their waning hours on earth to go out on an attack � they've got nothing to lose � and they'll fixate on some lawyer who noticed something in a 900-page statute that was so terribly important and yet so miserably unread.

"Isis supporters have threatened Twitter employees... with death over the social network�s practice of blocking accounts associated with the group."

"In an Arabic post uploaded to the image-sharing site JustPaste.it, the group told Twitter that 'your virtual war on us will cause a real war on you.' It warned that [Twitter co-founder] Jack Dorsey and Twitter employees have 'become a target for the soldiers of the Caliphate and supporters scattered among your midst!'"

�You started this failed war � We told you from the beginning it�s not your war, but you didn�t get it and kept closing our accounts on Twitter, but we always come back. But when our lions come and take your breath, you will never come back to life.�