By Mike Masnick @ Tech Dirt
A few months back, we discussed how the Supreme Court was going to hear the case of Anthony Elonis, who had been convicted for making “threats” on Facebook directed at his ex-wife. Elonis, who claims to be an aspiring rap artist, says they were just lyrics, and he wasn’t making any actual threat. On Monday, the Supreme Court had the oral arguments, and it gave Chief Justice John Roberts a chance to demonstrate his rapping skills [pdf]by quoting Eminem. The government’s lawyer, Michael Dreeben tried to play it off as different, because people would be entertained by Eminem, but that just raised more questions:
CHIEF JUSTICE ROBERTS: What about the language at pages 54 to 55 of the Petitioner’s brief? You know, “Dada make a nice bed for mommy at the bottom of the lake,” “tie a rope around a rock,” this is during the context of a domestic dispute between a husband and wife. “There goes mama splashing in the water, no more fighting with dad,” you know, all that stuff.
Now, under your test, could that be prosecuted.
MR. DREEBEN: No. Because if you look at the context of these statements
CHIEF JUSTICE ROBERTS: Because Eminem said it instead of somebody else?
MR. DREEBEN: Because Eminem said it at a concert where people are going to be entertained. This is a critical part of the context. It wasn’t as if he stated it to her in private or on a Facebook page after having received a protection from abuse order. It wasn’t as if he appropriated a style of rap that wasn’t anything that he had been doing previously in the marriage and all of a sudden tried to express violent statements that way.
In the context, I think any reasonable person would conclude at a minimum that there is ambiguity about these statements being a serious intention of an expression to do harm. And this is critical here. We’re talking about an area in which if the jury finds that it’s ambiguous, it has to acquit. It has to conclude that this is how these statements should be interpreted.
CHIEF JUSTICE ROBERTS: Well, yes, but you’re dealing with some very inflammatory language. The question is whether or not the jury is going to be swept away with the language as opposed to making the subtle determinations you’ve been talking about.
Justice Samuel Alito seemed ready to toss the First Amendment right out the window because, apparently, anyone can use it:
Well, this sounds like a roadmap for threatening a spouse and getting away with it. So you put it in rhyme and you put some stuff about the Internet on it and you say, I’m an aspiring rap artist.
And so then you are free from prosecution.
This reminds me of the claims about how a “source protection” law for journalists wouldn’t be any good because anyone can claim to be a journalist. The answer, again, should be so what? Beyond the fact it’s crazy unlikely that everyone who is actually threatening their ex-wives are going to make it rhyme and claim it’s just verse, the actual issue at law here makes this question totally irrelevant. The issue is whether or not there was a “true threat” at all, and if Elonis actually intended to do anything or if he was just mouthing off.
And, indeed, the court does wrestle with what the hell “true threats” mean, with Justice Kennedy, in particular, finding that concept (from the Supreme Court of the past) to be a particularly unhelpful phrasing. Right out of the gate at the beginning he noted:
I’m not sure that the Court did either the law or the English language much of a good service when it said “true threat.” It could mean so many things. It could mean that you really intend to carry it out, A; you really intend to intimidate the person; or that no one could possibly believe it.
Meanwhile, Justice Ruth Bader Ginsburg noted the problem of showing someone’s mindset:
How does one prove what’s in somebody else’s mind? This case, the standard was would a reasonable person think that the words would put someone in fear, and reasonable people can make that judgment. But how would the government prove whether this threat in the mind of the threatener was genuine?
Again, I don’t think anyone can (or should) prove what’s really going on in someone’s mind, but it seems like it’s perfectly reasonable to explore if there is any other evidence to support the idea that someone is out to do someone harm, that goes beyond just posting about it on Facebook (which, frankly, seems like a really dumb way to plan out how to harm someone, seeing as you’ve made it pretty clear you’ve done any such harm). But, even that doesn’t fully cover the issue in the case, which focused more on whether or not Elonis wanted his wife to be afraid, rather than if he was actually intending to do her harm (and, yes, there’s a fine line mixed in there somewhere).
No doubt, Elonis did an awful lot of things that were clearly designed to upset his ex-wife. But how much of that is protected online speech? As always, reading the tea leaves from oral arguments is not a wise move, so it’s tough to say which way the Court will actually decide. But, as Sarah Jeong recently noted in a great writeup for The Verge, this case could have a widespread impact on issues related to online harassment and bullying online, no matter which way the ruling goes. That article compares some of Elonis’ “lyrics” and actions with the threats often posted by internet trolls threatening to kill or rape people they disagree with — and, further, notes that the increased discussion around these issues may play into how whatever test the Court settles on will be applied in practice. In other words, this case, no matter how it’s decided, is likely to have a widespread impact.