Supreme Court justices met rap music and freewheeling social media on Monday, in a key case testing when incendiary words become criminal threats.
During a PG-rated oral argument, justices parsed the R-rated rhetoric of a Pennsylvania resident imprisoned for what he wrote on Facebook. The man likened his words to lyrics, prosecutors called them dangerous and the 59-year-old chief justice quoted Grammy Award-winning rap artist Eminem to make a point.
“That does subject to prosecution the lyrics that a lot of rap artists use,” Chief Justice John Roberts Jr. said of the government’s position.
Roberts’ court has issued prior decisions protecting noxious speech, from funeral protests to lies about military heroism, and several justices joined the chief Monday in suggesting a higher standard for prosecution of threats. Justice Sonia Sotomayor noted that “we’ve been loath to create more exceptions to the First Amendment,” and at least one colleague echoed the point.
“We typically say that the First Amendment requires a kind of a buffer zone to ensure that even stuff that is wrongful maybe is permitted because we don’t want to chill innocent behavior,” Justice Elena Kagan said.
The central legal question, which had no obvious consensus resolution Monday, is what determines whether a statement is a true threat that can be prosecuted. One test is whether a reasonable speaker would foresee that the statement would be interpreted as a threat. An alternative, harder-to-reach test would require proving a subjective intent to threaten.
The importance of the question is amplified by the online setting, as the American Civil Liberties Union and other groups noted in a legal brief that “the Internet has become the predominant means for communication and public discourse.”
Attorney John P. Elwood, representing the Pennsylvania man, elaborated Monday that an intent to threaten also could be inferred if a reasonable speaker would know with certainty that the words would be perceived as threatening. This is still a higher threshold than proposed by the Obama administration.
“The presumption is that when you speak English words and you’re an English speaker, you’re accountable for the consequences,” Deputy Solicitor General Michael R. Dreeben said. “There are plenty of ways to express yourself without doing it in a way that will lead people to think this guy is about to hurt somebody.”
The case, Elonis v. United States, has its roots in a May 2010 domestic dispute, when Anthony Douglas Elonis’ wife of seven years moved out of their home with their two young children. Elonis subsequently began experiencing trouble at his job at the Dorney Park & Wildwater Kingdom amusement park in Allentown, Pa.
After Elonis was fired, his hostile-sounding Facebook postings accelerated.
“There’s one way to love you but a thousand ways to kill you,” Elonis posted at one point. “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
When his wife secured a Protection From Abuse order by a state judge, Elonis went on Facebook to declare, “Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?”
Elonis would characterize his postings as “fictitious lyrics” and cite the work of commercial rappers as he voiced sentiments like “art is about pushing limits.”
Nonetheless, Elonis was convicted on four counts of making threatening communications and sentenced to 44 months in prison. He was freed last February.
On Monday, Roberts recited a few lines from Eminem’s ode to familial revenge, “Bonnie and Clyde,” to press Dreeben on whether the rapper, too, could be prosecuted for what sounds like a drowning threat. Dreeben countered that Emimen was safe because “he said it at a concert where people are going to be entertained.”
Conservative Justices Samuel Alito and Antonin Scalia sounded most skeptical of Elonis, with Scalia suggesting that Elonis deserved little protection from the First Amendment because his Facebook outbursts were “not worth a whole lot,” while Alito called him an “obsessed, somewhat disturbed” individual whose lyrical claims could lead to a dangerous precedent.
“This sounds like a roadmap for threatening a spouse and getting away with it,” Alito said. “You put it in rhyme and put some stuff about the Internet on it, and you say, ‘I’m an aspiring rap artist,’ and so then you’re free from prosecution.”
Justice Ruth Bader Ginsburg, released from the hospital last week after having a stent placed in her right coronary artery, was present and actively engaged throughout the hour-long argument Monday. Justice Clarence Thomas, as is his custom, did not speak or ask questions Monday.
A ruling is expected by the end of June.