Monday morning the Supreme Court agreed to hear an important First Amendment challenge that will attempt to sort out—after years of ambiguity and confusion in the lower courts—when threats, specifically Internet threats, should be taken seriously by the law. The case will be heard in the term that begins next October and will hopefully clarify whether threats of violence made over Facebook and other social media should be judged by whether the threatening speaker intended to harm anyone or whether the listener was genuinely afraid of being harmed. In light of the recent Isla Vista, California, shooting and other acts of violence that were telegraphed in social media, the answer to that question could not be more urgent.
So what do you do when you come across a Facebook posting that reads:
That’s it, I’ve had about enough
I’m checking out and making a name for myself
Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever imagined
And hell hath no fury like a crazy man in a kindergarten class
The only question is . . . which one?
Is that a threat to shoot up a school? Or just some guy writing terrible rap lyrics?
Anthony Elonis, an eastern Pennsylvania man, has served more than three years in prison for posting threats on Facebook. After his wife took their two kids and left him in 2010, he got fired from his job. He then began a series of dark and vengeful rants, sometimes in the form of rap lyrics like the above, about threats to kill his wife, a female FBI agent, and a class of kindergartners. Elonis contends that these weren’t ever real threats—that they were “therapeutic” and that these words are protected First Amendment speech. He claims that the lyrics were not intended as warnings of real violence and that they were a harmless way to express his severe depression and frustration after his wife left.
In one post, Elonis wrote about smothering his wife with a pillow and dumping her body in a creek so it would look like a rape. In another he wrote: “There’s one way to love you but a thousand ways to kill you. 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, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you. So hurry up and die, bitch, so I can forgive you.”
After an FBI agent visited him to follow up on the earlier threats, Elonis posted a rap about slitting her throat and claimed he’d had a bomb strapped to him throughout the interview. He was arrested in December 2010 and tried before a jury under a federal law that prohibits the use of interstate communications of threats to harm individuals. His wife testified that she was objectively terrified by the posts, especially since they increased after she filed a “protection from abuse” order against him. “I felt like I was being stalked. I felt extremely afraid for mine and my children’s and my families’ lives,” she said at the trial. She also testified that Elonis rarely listened to rap music and that she had never seen him write rap lyrics over the course of their seven-year marriage.
Elonis was convicted on four of the five federal charges and sentenced to 44 months in jail.
The case deals with an area of First Amendment law known as “true threats.” These kinds of threats are unprotected under the First Amendment. The trick is figuring out whether Elonis’ speech was a true threat or not. At his trial, the jury was told that the legal standard for whether something is an unprotected “true threat” is if an objective person could consider Elonis’ posts to be threatening. Elonis claims that the correct test should look at whether he intended for the posts to be understood as threats. He also argues that his rap lyrics are important protected speech, no different from the rap lyrics created by the great artists. In his view the threatening and violent lyrics he was posting were emulating those of Eminem. (Elonis was careful to include some disclaimers among his writings, suggesting that this was all more art than threat, and also an act of First Amendment protest: “Art is about pushing limits,” he posted. “I’m willing to go to jail for my constitutional rights. Are you?”)