Next Monday, the Supreme Court will hear oral arguments in a case originating near Bethlehem, Pennsylvania, that asks the Justices to decide when violent posts on social media are protected by the First Amendment.
In Elonis v. United States, 30-year-old Anthony Elonis is challenging a 44-month prison sentence he received for Facebook posts that appeared to threaten his ex-wife with violence.
One such post said, “If I only knew then what I know now … I would have smothered you’re [sic] a** 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.” Another declared, “Revenge is a dish that is best served cold with a delicious side of psychological torture.” (You can read more examples in the government’s brief.)
“I felt like I was being stalked,” his wife testified in district court. “I felt extremely afraid for mine and my children’s and my family’s lives.”
But as Constitution Daily reported in September, the case is complicated by Elonis’ claim that he is simply “an aspiring rapper” who liberally quoted from songs by Jay-Z, the Notorious B.I.G. (not to be confused with the Notorious R.B.G.) and Eminem on his Facebook profile.
“Art is about pushing limits,” Elonis wrote in one post. “I’m willing to go to jail for my constitutional rights.”
He may indeed get his wish. But first, the Supreme Court will have to decide whether it is enough that a “reasonable person” would view Elonis’ comments as a serious threat—the standard used to convict him—or if prosecutors have to prove that Elonis’ “subjective intent” was really to make threats.
Specifically, the Court will answer two questions: whether the federal law under which Elonis was convicted requires proof of subjective intent to threaten, and whether the First Amendment, especially in light of Virginia v. Black (2003), requires such proof as well.
The federal law in question, 18 U.S.C. § 875(c), says, “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”
And in Black, three Virginia men were convicted of burning crosses on their neighbors’ property. They were all convicted under a state law that prohibits the burning of crosses altogether without regard to intent. On appeal at the Supreme Court, however, their convictions were overturned and the Virginia law was struck down as unconstitutional for assuming the act of burning a cross must be an act of intimidation in all cases.
The attorneys for Elonis answer both questions with resounding affirmation. The plain language of 875(c), they argue, as well as its legislative history and case law, together indicate that subjective intent must be considered. They also point out that, if intent is not considered, what amounts to simple “negligent speech” would be criminalized, leading to a violation of the First Amendment.
As you might expect, attorneys for the government take precisely the opposite positions, arguing that the statutory text only requires a “reasonable person” standard—that is, would a reasonable third-party observer find the speech threatening?—and that prohibiting such threats does not chill speech.
How the Supreme Court will ultimately rule is uncertain. Under Chief Justice John Roberts, the Court has apparently championed the First Amendment. But upon a second look, the record is not so clear.
Nicandro Iannacci is a web strategist at the National Constitution Center.
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