In October and November 2010, Anthony Elonis, like many other
Americans, repeatedly used the social networking site Facebook as a
platform for sharing his thoughts. Unlike most other Facebook
users, however, Elonis ran afoul of federal law by posting graphic
and violent revenge fantasies that centered on him murdering his
estranged wife, murdering his employer and co-workers (those posts
got him fired), and eventually killing the F.B.I. agent sent to
investigate him. “You know your shit’s ridiculous when you have the
FBI knockin’ at yo’ door,” he wrote in one November 2010 post.
“Little Agent Lady stood so close/Took all the strength I had not
to turn the bitch ghost/Pull my knife, flick my wrist, and slit her
throat.”
As a result of that Facebook post and several others like
it—including one where he said that he wouldn’t rest until his wife
was “soaked in blood and dying from all the little cuts”—Elonis was
convicted on four counts of transmitting “in interstate or foreign
commerce any communications containing any threat to kidnap any
person or any threat to injure the person of another.” A jury
sentenced him to 44 months in prison and his conviction was later
upheld by
the U.S. Court of Appeals for the 3rd Circuit. Today, the U.S.
Supreme Court will hear Elonis’ appeal.
At issue in
Elonis v. United States is whether those Facebook
posts constitute a “true threat” of violence, or whether they
qualify instead as a form of constitutionally protected speech
under the First Amendment.
“I’m just an aspiring rapper,”
Elonis declared several times on Facebook, likening his bloody odes
to the work of bestselling rapper Eminem, whose hit song “97 Bonnie
and Clyde” also featured the murder of an estranged wife. In fact,
in his
main brief to the Supreme Court, Elonis and his lawyers
characterize his Facebook writings as part of a long, colorful
tradition in American music, one where artists as different as Bob
Dylan, Guns N’ Roses, Lightnin’ Hopkins, and Body Count all detail
“first-person revenge fantasies” via song. “However hateful or
offensive,” the Elonis brief argues, “those songs are entitled to
full First Amendment protection. The same protections extend to the
efforts of amateurs writing on comparable themes, moved by similar
experiences.”
The federal government, however, is not buying it. Elonis’
assertion “that his own speech was indistinguishable from the
speech of the various commercial artists he claims to have imitated
wholly disregards the very different contexts in which his own
statements were made,” the government argues in its
reply brief. For one thing, the government points out, after
Elonis’ wife sought and received a restraining order against him in
response to one set of graphic Facebook posts, he promptly returned
to the social networking site to ask whether her restraining order
is “thick enough to stop a bullet?”
As the federal government sees it, Elonis was well aware that
his posts “communicated a serious expression of an intent to do
harm.” And besides, “even if [Elonis] subjectively intended his
posts to carry a different meaning,” a reasonable observer would
nonetheless interpret them as “true threats” of violence (as
Elonis’ wife did interpret them). “The First Amendment does not
require that a person be permitted to inflict those harms based on
an unreasonable subjective belief that his words do not mean what
they say,” the federal government told the Court.
Did Anthony Elonis intend to communicate multiple serious
threats of illegal violence via Facebook? Or was he simply
employing the forceful language of gangster rap in order to express
himself in what he considered to be an artistic manner? The outcome
of the case likely hinge on the Supreme Court’s answers to those
questions.
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