In a much-watched case that involved Internet communications, free speech, rap lyrics, and criminal law, the Supreme Court ruled 7-2 today that threats communicated online cannot constitute a true threat unless the speaker truly intended it as one.
Anthony Elonis was sentenced to 44 months of prison plus three years probation for postings on Facebook that graphically laid out violent scenarios about his co-workers, his estranged wife, his children and their young classmates, and an FBI agent who was investigating his conduct. Elonis claimed these statements, including a post directed at his former wife that said “There’s one way to love you but a thousand ways to kill you," were not threats but rather drawn from and an homage to rap lyrics, in the style of Eminem. His posts even played at being First Amendment performance art, including one posting in which he wrote, “Did you know that it’s illegal to say I want to kill my wife?”
The jurors in his trial had been instructed to find him guilty if a “reasonable person” would interpret his statements as a serious expression of his intent to harm, and they voted to convict him. The courts of appeals are split on the issue, which is one of the reasons the Supreme Court waded in.
Today, the court reversed Elonis’ conviction and kicked the case back to the lower court, which the justices say had erred in its jury instructions. The majority found that it’s not enough that a “reasonable person” would understand his threats to be threats. He had to have some intent. This is a higher standard and one to which the government and women’s groups strongly objected, arguing that this leaves women vulnerable to dangerous online abuse. The Chief Justice, writing for the majority, explained that the First Amendment issues in the case, about whether these kinds of lyrics are protected speech or not, need not be reached. The ruling represents the narrow refinement of a criminal statute, not a sweeping proclamation of new rules governing rap lyrics or online threats.
Justice Samuel Alito concurred in part and dissented in part, writing that the new intent standard will cause yet more confusion in the lower courts. Clarence Thomas filed a dissent making the same point. The lack of a clear rule, he wrote, will “throw everyone from appellate judges to everyday Facebook users into a state of uncertainty.”
Last month Elonis was charged with domestic violence in another, unrelated dispute.