If I look you in the eye and tell you with a flick of my wrist I will slit your throat, you will likely call the police and have me arrested. If I threaten to kill my co-workers, or plant a bomb in a kindergarten class, or shoot my spouse, I will lose my job, my marriage and my freedom. But, if I make those same egregious threats in the form of a rhyme and post them on Facebook it is “artistic expression” and protected free speech.
That is the basis of the argument Anthony Elonis made to the U.S. Supreme Court in a ground-breaking case that is the Court’s first examination of the limits of free speech on social media. Oral arguments were heard Dec. 3, 2014, and a decision is expected by the end of June. That decision will have far-reaching implications, not just for battered spouses, but for employers who want to fire an employee who uses social media to harass and threaten co-workers.
Not long after his estranged wife persuaded a judge to issue a protective order against him, Elonis posted this message to his Facebook page: “Fold up your PFA (protection-from-abuse order) and put it in your pocket. Is it thick enough to stop a bullet?”
Multiple threatening and harassing posts followed, with Elonis targeting his wife, his co-workers and law enforcement. This post was directed to his wife: “If I only knew then what I know now… I would have smothered your ass with a pillow. Dumped your body in the back seat. Dropped you off in Toad Creek and made it look like a rape and murder.”
When Elonis further threatened co-workers and a kindergarten class, he was visited by agents of the Federal Bureau of Investigation — including a female agent — who inspired this:
“…Took all the strength I had not to turn the bitch ghost
Pull my knife, flick my wrist and slit her throat
Leave her bleedin’ from her jugular in the arms of her partner…”
In some of his online rants he included writings about free speech and artistic expression, and claimed inspiration from the violent, misogynist lyrics of the rap artists he admires. Elonis was nonetheless fired from his job and later convicted by a Pennsylvania jury of four counts of threatening through interstate communication. He was sentenced to 44 months in prison, but the case climbed all the way to the Supreme Court with Elonis challenging the conviction based on his First Amendment rights.
The outcome will determine whether conviction for threatening another person over interstate lines — under 18 U.S.C. § 875(c) — requires proof of subjective intent to threaten, or whether it’s enough to show that a “reasonable person” would regard the online statement as threatening. Essentially, the Supreme Court must decide whether a prosecutor has to prove what the defendant intended by his words or whether it’s enough to simply show that the victim was in fear of what might happen.
The attorney for Elonis, John P. Elwood, argued to the Supreme Court that restrictions on online writings could have a “chilling effect” on free speech, and the types of threats posted by his client are merely fantasy. But, Deputy Solicitor General Michael Dreeben argued that if a reasonable person feels threatened by an online posting that is enough to constitute a true threat, and “true threats cause fear and disruption to society and to the individuals who are targeted.”
Elonis won support from the ACLU and free speech advocates who say social media is often a place to simply blow off steam, and that teenagers in particular use inflammatory language with no intent to harm or threaten. Justice Roberts himself pointed to lyrics from Eminem that might sound intimidating on the internet, although they are arguably meant to entertain:
“Dada make a nice bed for mommy at the bottom of the lake… There goes mama splashing in the water, no more fighting with dad.”
(Yes, the Chief Justice of the U.S. Supreme Court read those lyrics into the record during oral arguments.) The Supreme Court seems to be grappling with whether it should provide what Justice Kagan called a traditional “buffer zone” for even unsavory speech that deserves First Amendment protection. But, do criminal threats deserve protection simply because they are transmitted electronically? The National Network to End Domestic Violence filed an amicus brief pointing out that victims who escape their abusers can still be reached with the click of a mouse, and experience “real-life terror caused by increasingly graphic and public posts to Facebook…”
Both sides argued that social media has unique qualities — that Elonis called a harmless outlet for “momentary anger” and the government characterized as a tool for dispensing harmful threats. Though some courts already require prosecutors to show that a defendant intended to make good on threats of violence others (including the Sixth Circuit) consider whether the victim was reasonable to feel threatened. Now the Supreme Court has a decision to make. Even when there are no sticks or stones in sight, can words really hurt you?
