One of the major cases next year in the Supreme Court is about the First Amendment, free speech and Facebook, and the Justices’ decision could hinge on their understanding and interpretation of what constitutes rap music lyrics.
The Marion R. Brechner First Amendment Project filed the brief on behalf of two rap music scholars in the case. But unlike other case briefs supporting Anthony Elonis that cite William Blackstone, Oliver Wendell Holmes, Jr., and John Stuart Mill as authorities, the Brechner Brief cites Jay-Z, the Notorious B.I.G, and Eminem in its arguments.
In this case originating near Bethlehem, Pennsylvania, the 30-year-old Elonis is challenging a 44-month prison sentence for posts on Facebook that appeared to threaten his wife with violence.
The Court will decide whether it is enough that a “reasonable person” would view his comments as a serious threat, or if a jury needed to consider Elonis’ “subjective intent”and whether he really meant the statements as threats.
The graphic words used by Elonis on Facebook included several threats to kill his estranged wife, and statements made by Elonis online after he was served with a protection-from-abuse order. Other posts from Elonis mentioned shooting elementary school children and harming an FBI agent who came to his house.
His estranged wife said in testimony that she felt threatened by the statements, and she was worried about her family’s safety. Elonis argued that his Facebook statements were protected free speech under the First Amendment, because he was venting his frustration over his marital situation, by using the structure and influence of rap lyrics, in some cases.
The jury in the case was instructed to just consider the “reasonable person” standard and not consider “subjective intent” standard, and it convicted Elonis.
When Elonis’ counsel, John Elwood, asked the Court to take the case, he sought an answer to a broad question about the First Amendment and social media.
“This is an ‘ideal case’ to resolve persistent confusion about the constitutional standard governing threats because it involves the use of social media that ‘underlie the vast majority of contemporary threat cases,’” Elwood argued in a petition. The United States Solicitor General Donald Verrilli argued that the lower court jury was properly instructed and that the situation could be resolved in other courts.
But when the Supreme Court took the case in June, it asked both sides to answer the following question, “Whether, as a matter of statutory interpretation, conviction of threatening another person … requires proof of the defendant’s subjective intent to threaten.”
So the Court’s decision to review the issue of subjective intent is critical to the case, as well as its analysis of Elonis’ threatening statements as real threats, or as “therapy” in the form of artistic expression.
The argument being made by Elonis’ defenders is that he was emulating the rapper Eminem and others (including a comedian) in his Facebook postings, and he didn’t intend for his own lyrics, posted on Facebook, to be threats. They also cite a previous Supreme Court decision, Virginia v. Black, as supporting the subjective intent argument.
In the Brechner brief, Professors Erik Nielson and Charis Kubrin say that “the history and conventions of rap music, the heavily stigmatized artistic and often political genre of musical expression through which Petitioner Anthony Douglas Elonis conveyed much of the speech at issue in this case, illustrate why the Court should require proof of the defendant-speaker’s subjective intent to threaten under both the First Amendment-based true threats doctrine.”
The professors also cite a 1971 Supreme Court case called Cohen v. California, where a divided Court held that “one person’s lyric may be another’s vulgarity.”
“As a result of such misinterpretation and misunderstanding, important political and artistic expression may be wrongfully squelched and punished,” they argue.
The other factor in the case is the use of social media to make the threats, or post rap lyrics, depending on your point of view.
“Modern media allow personal reflections intended for a small audience (or no audience) to be viewed widely by people who are unfamiliar with the context in which the statements were made and thus who may interpret the statements much differently than the speakers intended,” Elonis’ attorneys argue in his court petition.
The Third Circuit Court of Appeals upheld Elonis’ conviction on several grounds, and it did include a consideration of how Elonis intended to use Facebook to deliver his messages.
“[T]o lose the protection of the First Amendment and be lawfully punished, the threat must be intentionally or knowingly communicated to either the object of the threat or a third person,” said Judge Anthony Scirica.
“The government did present testimony on how Facebook works. A computer forensic expert, Michael Moore, testified about privacy settings and that when a Facebook account is made public the postings can be seen by ‘whoever has access to it through the internet throughout the world.’”
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