This week, U.S. Supreme Court is considering the issue of free speech in the digital age, reviewing the case of a Pennsylvania man who was sentenced to nearly four years in prison for posting graphically violent rap lyrics on his Facebook page.
Court documents show that back in May 2010, life wasn’t going very well for Anthony Elonis. His wife of seven years, Tara, moved out of the couple’s home taking their two children with her. Elonis, despondent, began having troubles at the amusement park where he worked. Matters only got worse after a co-worker accused him of sexual harassment.
Elonis posted something menacing about the woman on Facebook. When his supervisor saw the post, he fired Elonis.
The Pennsylvania man then began posting a slew of angry rap lyrics.
“There’s one way to love you, but a thousand ways to kill you,” he wrote about his wife. “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
When Elonis’ sister-in-law posted about shopping for Halloween costumes for his two children, Elonis posted, “Tell [my son] he should dress up as matricide for Halloween. I don’t know what his costume would entail though. Maybe [my ex-wife’s] head on a stick?”
His wife said she was afraid for her life and obtained a court order forbidding Elonis from having any contact with her. But her ex continued his Facebook rants, suggesting violent attacks on police and the FBI, and even a school shooting:
“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?” he posted.
Eventually, his posts attracted the attention of the FBI, who came to his house to interview him. After they left, he posted another set of lyrics, clearly directed at federal investigators:
“So the next time you knock, you best be serving a warrant…And bring yo’ SWAT and an explosives expert while you’re at it…Cause little did y’all know, I was strapped wit’ a bomb…Why do you think it took me so long to get dressed with no shoes on?I was jus’ waitin’ for y’all to handcuff me and pat me down…Touch the detonator in my pocket and we’re all goin’ [BOOM!]”
Elonis’ lawyers and his supporters argue that he was just letting off steam, that his lyrics were, in essence, an art form, and that he never intended to hurt anyone. They say Elonis was heavily influenced by Eminem, who, after all, once rapped about killing his ex-wife and was never prosecuted.
Jurors in the Elonis case were instructed to consider whether a reasonable person would consider his Facebook posts to be threatening. It took them only three hours to deliberate: They found him guilty of violating a federal law that makes it a crime to threaten another person and sentenced him to four years
Elonis appealed his case, claiming his right to free speech under the First Amendment of the U.S. Constitution. After the 3rd U.S. Circuit Court of Appeals in Philadelphia upheld his conviction, Elonis filed an appeal with the Supreme Court, which Monday began its review of the case.
Elonis has the support of interest groups like the Student Press Law Center, the Electronic Frontier Foundation and PEN American Center, who want to see the appeals court decision reversed, worrying that if it stands, it sets a precedent for “increasing, excessive censorship of constitutionally permissible speech.”
They quote psychologists who reason that “people say and do things in cyberspace that they wouldn’t ordinarily say and do,” and that internet users may vent emotions they would never dare act out in person.
But tell that to Tara Elonis, who said she believed her estranged husband’s threats.
“I felt like I was being stalked. I felt extremely afraid for mine and my children’s and my families’ lives,” she told jurors in the original trial of October 2011.
The National Network to End Domestic Violence (NNEDV) filed a brief in the case arguing that whether Elonis meant the threats or not, they still caused harm.
“The recipient of a threatening message does not—and indeed cannot—know the private motivations the speaker had for sending it. She can only react to the message based on its objective character. If it is objectively threatening, she will predictably fear for her life and will likely take various precautions in order to protect herself. The harm is created by the threat itself,” reads the NNEDV statement.
NNEDV argues that threats of violence commonly precede domestic violence and that the internet offers abusers a new tool for threatening victims. calling in If threats on social media and that these threats cannot be protected by free speech laws.
The First Amendment guarantees freedom of speech in the United States, but for decades, the Supreme Court has struggled over the question of whether some speech should not be protected.
In previous rulings, the Court has determined that free speech does not include the right to, for example, make or distribute obscene materials, yell “Fire!” in a crowded theater and therefore cause dangerous panic.
Monday’s hearing, whose transcript is available online, demonstrated just how tough it will be for justices to draw the line between offensive ranting and true threats, and to come up with a legal standard for differentiating the two.
The government lawyer argued that online threats should to be taken as seriously as any other threats, and while no ruling has been made, the justices seemed to agree.