In another case of song-lyric-Facebook-posting gone wrong, the Supreme Court is currently weighing our free speech rights in terms of social media. The case involves a Pennsylvania man named Anthony Elonis, who was sentenced to nearly four years in prison for posting violent rap lyrics to Facebook that threatened to kill his ex-wife. His lawyers have now cited Eminem as inspiration in their defense (Elonis v. United States, 13-983).
Elonis, who posted about attacking an FBI agent, murdering his wife, and shooting up a kindergarten class, asserted that he was just venting about his divorce and never meant to threaten anyone. Federal prosecutors disagreed and a jury convicted him for threatening another person, a crime under federal law.
His lawyers argued that his words are protected by the First Amendment, and that the government must prove he actually intended to threaten others. They also said that his posts were heavily influenced by the lyrics of Eminem, who has also rapped about killing his ex-wife.
For four decades, Supreme Court has been careful to differentiate between “true threats,” which are not protected speech under the First Amendment, and “political hyperbole” or “unpleasantly sharp attacks,” which are. However, they say that the real test is whether the comments would make a reasonable person feel threatened. With posts like “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts,” and his ex-wife’s testimony that she was afraid for her life, Elonis may have a tough time passing that test.
The aggressive speech continued when his wife obtained a protective order against him. Elonis mocked the court proceedings in a lengthy post that inquired, “Did you know that it’s illegal for me to say I want to kill my wife?” When a female FBI agent visited him to ask about the post, he returned to Facebook and wrote, “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.”
Many free-speech advocates have spoken out about the case, saying that comments on social media can be impulsive, easily misinterpreted, or taken out of context. A statement from the American Civil Liberties Union defended Elonis, opining that “A statute that proscribes speech without regard to the speaker’s intended meaning runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed.”
However, the Obama administration said that requiring proof that a speaker intended to be threatening would undermine the protective purpose of the law. The Justice Department stressed this in its brief to court, saying that no matter how someone feels about their own words, it does not diminish the fear or anxiety they might cause other people.