Due to some graphic language, reader discretion is advised.
As early as this week, the U.S. Supreme Court will publish an opinion in a case that could have far-ranging implications for social media postings and the First Amendment, but also whether and when rap lyrics are protected as artistic expression in the same way as other types of writings.
As one “friend of the court” brief points out, rap and certain subgenres therein “carry with them many negative stereotypes of violence and crime…,” adding that this type of musical expression “often involves posturing and hyperbole, with rappers often boasting and taking on personas to impress others,” something that it understood by those familiar with the genre but which could be misconstrued as viable threats or real life situations by those who are not as well acquainted with rap. This is noteworthy as an increasing number of cases are using rap lyrics as evidence in criminal trials.
Equally important, this marks the first time the Supreme Court will address social media threats, or language perceived as threatening, meaning it is going to be a precedent-setting ruling when it is delivered. In an opinion piece published in the Washington Post around the time of case’s hearing, it is noted that the gang unit in Newport News, Virginia, dedicates up to half of its time monitoring social media sites.
The case centers around comments posted on Facebook by Pennsylvania resident Anthony Elonis, then 27, back in 2010. In a matter of months, Elonis’ then-wife left him, taking their two children with her, and he lost his job after several people under his supervision at a theme park accused him of harassment.
But Elonis, who has repeatedly compared himself to Eminem in his legal proceedings and held that artist up as an influence, took to Facebook under his performing name, “Tone Dougie,” and posted a series of what he claimed were rap lyrics.
In one post, his ex-wife’s sister asked about Halloween costumes for their young children, and he suggested a son “dress up as matricide for Halloween. I don’t know what his costume would entail though. Maybe [his ex-wife’s] head on a stick?”
He’d also posted on his Facebook page: “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.”
In another post, on November 4, 2010, after his ex-wife obtained a protective order against him, Elonis wrote on Facebook:
“Did you know that it’s illegal to for me to say I want to kill my wife?
It’s indirect criminal contempt.
It’s one of the only sentences that I’m not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife.
I’m not actually saying it.
I’m just letting you know that it’s illegal for me to say that.
It’s kind of like a public service.
I’m letting you know so that you don’t accidentally go out and say something like that.”
The same post goes on to say that while “it’s not illegal to say with a mortar launcher,” it would be illegal to say on Facebook the best place to launch a mortar at a particular unnamed woman’s house would be from behind a cornfield because there’s easy access to a getaway road from which someone taking that action wouldn’t be seen.
Adding to his case, shortly after his ex-wife obtained a protection from abuse order and told a judge she felt like she was being stalked and threatened and feared for the safety of herself and their children, on November 15, 2010, Elonis posted lyrics asking whether a protection order is “thick enough to stop a bullet.”
In subsequent postings, he wrote about making a name for himself, commenting about “enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined…” That one got the attention the FBI, who went to the house where Elonis was staying with his father. Following a visit by two FBI agents, he took to Facebook again, posting lyrics that implied temptation to kill an FBI agent with a knife and suggesting he had a bomb strapped to his chest at the time.
In none of these posts, save the one about the child’s Halloween costume, are names ever used.
Lower courts have all found in favor of Elonis’ ex-wife, convicting him of “transmitting in interstate commerce a ‘threat to injure the person of another.’” He was sentenced to 44 months in prison, followed by three years of supervised probation, a term he has nearly served in full.
All the while, Elonis has maintained that these posts were lyrics, protected speech under the First Amendment of the U.S. Constitution as artistic expression. He and his lawyers have argued that any reasonable person would not, on their own, take these posts as a threat against any particular individual and therefore the charges should be dropped.
Briefs in support of Elonis have been filed by numerous free speech advocacy groups, including the Marion B. Brechner First Amendment Project, the Student Press Law Center, the Reporters Committee for Freedom of the Press, the American Civil Liberties Union and the Thomas Jefferson Center for the Protection of Free Expression.
Citing two cases held up as precedent in this legal area, the brief filed by the Jefferson Center and others say the Supreme Court’s “current true threats doctrine was initially construed exclusively around a particular type of communication,” including face-to-face communication, in which a person can determine both the speaker of a threat and the speaker’s intended target. The groups argue that authors or artists of posts might only intend for a particular audience to read content but, due to the way in which information is disseminated online and the possibility of overlapping social media networks, the author might not have as much control in where that post is read or who sees it.
“This case presents the court with the opportunity to determine whether social media and other modern modes of communication require a reevaluation of [preexisting case law and precedents] or if those cases remain relevant and fully capable of performing as intended to distinguish threats from constitutionally protected speech,” the groups write.
There’s also the question of an author’s “true meaning” when information is spread along social networks. “One could imagine, for example, a court examining the number of ‘likes’ an allegedly threatening post has received on Facebook as evidence of the speaker’s true meaning,” the groups say.
The group concludes that “rap is complex. It involves political, violent, racial, artistic and cultural components, all of which affect the meaning and interpretation of any given instance of rap,” and that, in many case, these artist are trying to use this type of expression as a way to get out of their own living situations and into safer, less violent conditions.
On the other hand, briefs have been filed in support of Elonis’ conviction by groups ranging from People for the Ethical Treatment of Animals, the National Center for Victims of Crime, the National Network to End Domestic Violence and the Domestic Violence Legal Empowerment and Appeals Project.
Women, who are more likely to report being stalked than men, have a very difficult time proving that language that made them feel threatened was actually targeted at them, according to a brief field by the National Center for Victims of Crime. Any efforts to protect speech like the lyrics posted by Elonis would undermine the laws in place to protect people who feel threatened. “A subjective intent standard gives undue protection to speech that serves no legitimate function and will erect additional barriers to reporting and prosecuting stalking,” the group says, adding that such a test “does not adequately address the great burden that victims of threatening speech and conduct must bear.”
The brief notes that “stalking is often the precursor to physical violence and homicide,” and that such behavior “commonly begins or escalates after one party ends an intimate relationship.” Victims of stalking, in particular cyberstalking, often face undue financial and emotional hardship, that they cannot escape the reach of the person perpetrating the crimes. “A victim must bear these costs regardless of the defendant’s subjective intent. The First Amendment should not be interpreted in a way that prevents states from protecting stalking victims against the real harm caused by threats.”
The group states also that a subjective intent standard makes it harder to prosecute such crimes because the person committing them does so “without the specific intent to cause the victim fear. A stalker will maintain a strong, irrational belief that the victim will return his feelings of affection if he is persistent enough.”
According to a blog that closely follows Supreme Court proceedings, some opinions will be issued as early as Tuesday, March 24.