The Supreme Court on Monday was set to hear arguments on violent rap lyrics posted to Facebook — a case that could redraw the boundaries between protected free speech, criminal threats made over social media and the latitude that is often granted for artistic expression.
The case involves Pennsylvania resident Anthony Elonis, who was sentenced to four years in prison for posting explicit rap lyrics in which he threatened to murder his estranged wife, shoot up elementary schools and slit the throat of an FBI agent who was investigating his case. He was convicted in federal court on five counts of transmitting interstate threats — over the Internet, in this case — “to injure the person of another.”
“I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die bitch,” read one chilling post about his now ex-wife, Tara.
Since Elonis was convicted, however, his case has bounced around lower courts and rallied free speech advocates, who contend that comments on social media are often hastily made and can easily be taken out of context.
Elonis’ lawyers argued that his posts amount to a crude form of artistic expression, that Elonis was merely venting rage about his failing marriage and his recent firing. They noted that the lyrics, posted under the alias “Tone Dougie,” drew frequently from rapper Eminen, who also alludes in songs to killing his ex-wife.
Furthermore, they have argued that under the First Amendment, prosecutors need to demonstrate Elonis had a subjective intent to harm any of those targeted by his lyrics or that he meant for his words to terrify his wife. Elonis has said he did not.
According to a brief from the American Civil Liberties Union, “A statute that proscribes speech without regard to the speaker’s intended meaning runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed.”
The Supreme Court has long held that "true threats" to injure another person are not protected speech under the First Amendment. But the Elonis case may not hinge on Elonis’ intent to carry out the alleged threats, which is a common misconception about the true threat exception to the First Amendment.
In an explanation of its landmark 2003 ruling in Virginia v. Black, a case that dealt with the Ku Klux Klan’s burning of crosses to intimidate families, the Supreme Court held that “the speaker need not actually intend to carry out the threat.” Rather, the court said, "a prohibition on true threats ‘protects individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur.'"
The government has argued that applies to Elonis' lyrics, since Tara Elonis filed a restraining order on the grounds she feared for her life. The appeals court agreed, saying in its decision that the federal statute requires only that a "reasonable person" would feel legitimately threatened by the speech in question.
According to Floyd Abrams, a partner of the law firm Cahill Gordon and Reindel and a First Amendment expert, the Supreme Court will tackle the question of whether Tara Elonis' perception that her husband intended harm is enough to warrant a crime, or if demonstrating her husband's threatening state of mind is also necessary. “That’s a hard enough question in general, but the difficulty is augmented by the context of a medium — Facebook — in which people say more outrageous and sometimes offensive things than they might in other contexts,” Abrams said.
Writing in The Atlantic, legal scholar Garrett Epps outlined that gray area: “If Elonis had sent the threats to the targets by mail, there would be little doubt of his intent. If he had written them in a diary that was discovered by accident, there’d be little doubt that they were protected. Where do Facebook postings fall?”
One possible outcome of the Elonis hearing would be for the Supreme Court to provide similar latitude in assessing potentially threatening language published on one’s personal social media accounts as it has previously done in other contexts. For instance, the Court has historically ruled that genuinely threatening language can be distinguished from intentional hyperbole in certain political contexts. In Watts v. United States, for example, the Supreme Court reversed the conviction of an anti-war protester who said that if he was drafted to fight in the Vietnam War, “the first man I want to get in my sights is LBJ,” referring to then–U.S. President Lyndon B. Johnson.
Still, while Elonis did not post his threats on anyone else’s Facebook walls, he surely knew his posts would be accessible to his ex-wife, co-workers and maybe even schoolchildren (depending on his privacy settings), all of whom were targeted by his lyrical venting. And threats posted to Facebook that are made public can set off panic, regardless of their intent.
In one post, Elonis wrote, “Hell hath no fury like a crazy man in a kindergarten class, The only question is … which one” — a comment that authorities might be inclined to take seriously, in the aftermath of the Sandy Hook shooting and a spate of random acts of gun violence at U.S. schools.
Epps offered the example of delinquent high-schoolers who phone in a bomb threat to their school. Even if the students have no intent or even capability to procure a bomb, classes would be canceled, students evacuated, emergency services called and children treated for potential psychological trauma. Additionally, future bomb threats may be taken less seriously.
“Make it too easy to prove a threat, and government can muzzle those it dislikes; make it too hard, and the rest of us — on the job, on the streets and in our homes — are at the mercy of men like Elonis,” he wrote.