Today, the Supreme Court held that you can post a threat to kill your wife on Facebook, but you’re not guilty of making a threat.
This is good news if you’re focused on free speech, especially online. It’s bad news if you’re concerned about the capacity of information technology to amplify threats, stalking, and coercion.
The result in the case, Elonis v. U.S., comes as something of a surprise, especially because it was a 7-2 decision, with Chief Justice Roberts writing for the court. That means the court’s liberal wing, the moderate-conservatives (Kennedy, Roberts) and even Justice Scalia were all in agreement.
The reason, however, was not the First Amendment. Court-watchers, and the defendant, Anthony Elonis, noted that the “threat” was simply a set of rap lyrics, and debated whether they were constitutionally protected. But the Court itself didn’t go there, instead basing its ruling purely on the federal criminal statute.
That statute says that anyone who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” is guilty of a felony. But what is a “threat,” exactly? Specifically, does it require evidence of an actual intent to harm the person, or is it enough “that a reasonable person would regard Elonis’s communications as threats”?
The district court had said the latter, but today, the Supreme Court disagreed. Threatening language is not enough. Targets feeling threatened is not enough. Criminal law requires mens rea, an “evil mind,” and in this case, the Court held that there must be some specific intention to threaten. Since that wasn’t established in this case (and since Elonis assiduously denied having it) the Court threw out his conviction.
(In dissent, Justice Thomas argued that a “general intent” should be sufficient, while Justice Alito argued for an intermediate standard of “recklessness.”)
Now, here’s where it gets interesting. Elonis is also known as “Tone Dougie,” and has produced some seriously bad rap lyrics, quoted at length in Chief Justice Roberts’s opinion. Indeed, to bleep out the bad words required 22 asterisks. The best parts of Tone Dougie’s oeuvre aren’t even the initial threats to his ex-wife, but the meta-threats that reference his investigation by the FBI. Here’s a sampling, asterisks provided by the Supreme Court:
You know your s***’s ridiculouswhen you have the FBI knockin’ at yo’ doorLittle Agent lady stood so closeTook all the strength I had not to turn the b***• ghostPull my knife, flick my wrist, and slit her throatLeave her bleedin’ from her jugular in the arms of her partner…S***, I’m just a crazy sociopaththat gets off playin’ you stupid f***s like a fiddleAnd if y’all didn’t hear, I’m gonna be famousCause I’m just an aspiring rapper who likes the attentionwho happens to be under investigation for terrorism…
Fab Five Freddy this is not. It’s not even Biz Markie. But it does bear a passing resemblance to someone Justice Alito referred to as a “well-compensated rapper,” namely Eminem.
The difference is that Eminem’s lyrics are clearly contained within a work of art, but Tone Dougie’s were simple Facebook posts. Yes, they rhymed (sort of), but they were simple posts.
“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.”
The Court noted that had Elonis typed these words out and snailmailed them to his ex-wife, it would almost certainly constitute a criminal threat, because it was made directly to the intended victim and thus counts as evidence of mens rea. (The Court didn’t use the term snailmail, of course—and referred to Facebook as a “social networking Web site.”) Presumably, if the text was emailed—or maybe direct-messaged?—it would also, thus, be a criminal threat.
So the only reason it wasn’t is that it was posted semi-publicly on Facebook. This allowed Elonis to tell one Facebook friend that “I’m doing this for me. My writing is therapeutic,” and to proclaim himself a victim of artistic censorship. Therapy, art, whatever—but not actual threats.
(In a detail not widely reported in the press, Elonis also posted “therapeutically” about his co-workers—at one point posting a picture taken at Halloween of him holding a toy knife to a co-worker’s neck, with the caption “I wish.” Classy.)
Now, throwing out Elonis’s conviction does not mean that he’s permanently off the hook. He could be tried again, although the state would now have to prove that he intended to threaten his targets.
But the Court’s decision is a victory for free speech advocates, and a loss for those worried about harassing speech online.
On the one hand, you can’t be convicted just because someone else finds what you said on Facebook to be threatening. As a poster child for civil liberties, Tone Dougie now joins the KKK marchers in Skokie. We may not like what he says, but we’re proud to defend his right to say it. Civil liberties protect all of us.
On the other hand, Facebook is a unique, new medium for harassment. (This, incidentally, was the company’s rationale for its “real names” policy.) Arguably, threats made in public are even more terrifying than those made in private, especially if other people “like” what you’ve said.
The Court is treating it like a newspaper, or an open mic at the poetry slam, but many of us relate to it far more intimately. It’s a venue all its own—a combination of telephone, bulletin board, and, occasionally, mob scene.
Moreover, requiring an intent to threaten makes it very easy for stalkers and vengeful exes to deny liability. Oh, that wasn’t a threat, I was just musing aloud. Right.
Of course, since the Court declined to entertain the constitutional questions, this is all just a matter of statutory law, and statutes can be changed. The Court also successfully avoided the question of when art is art. It didn’t say what Elonis’s words were, only that they weren’t actual threats. Elonis is thus yet another case of Roberts’s judicial minimalism.
Though I bet it doesn’t feel that way to Elonis’s ex-wife.