Today at SCOTUS: When Do Facebook Rants Qualify As 'True Threats' of Violence?


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.

Courtesy of Sire Records

"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 will likely hinge on the Supreme Court's answers to those questions.

Related from Reason TV: "Killer or Artist? Why Rap Is on Trial"