What does Supreme Court Chief Justice John Roberts think about Gamergate? How seriously does Justice Clarence Thomas take Facebook rants? And will Justice Anthony Kennedy’s First Amendment enthusiasms extend to rap lyrics?
All of these intriguing questions are on the table at the nation’s highest court Monday morning with oral argument for Elonis v. United States. The case features a Pennsylvania man, Anthony Elonis, who claims his Facebook rants about killing his estranged wife and others were rap lyrics. Having been convicted of those threats, Elonis is asking the court to put down a standard for what counts as a "true threat,” which is not protected by the First Amendment: Should that test be how the speaker intended the comment, or whether the recipient felt threatened?
Elonis comes just in time for national debates over Internet bullying and stalking, about rape culture and violence against women, and about the role in the press and artists in publishing provocative material. It may also make some of the nine justices squirm. They aren't exactly known for their technological aptitude, nor their pop culture savvy, and Justice Ruth Bader Ginsburg recently accused her male colleagues of having a "blind spot" around gender.
Elonis’s Facebook rants escalated after his wife left him, taking their two kids. He was fired following sexual harassment complaints against him and an incendiary Facebook post about a co-worker. Eventually, his Facebook posts encompassed furious and detailed comments about his place of work, his wife, police officers, unnamed elementary schools he suggested he would shoot up in "the most heinous school shooting ever imagined." Another target was a female federal agent who visited his home, whom he said he would leave "bleedin’ from her jugular."
The most vivid fury was aimed at his wife. “If I only knew then what I know now, I would have smothered your ass 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,” Elonis wrote. He also wrote, "There’s one way to love you but a thousand ways to kill you” and "I used to be a nice guy but then you became a slut. Guess it’s not your fault you liked your daddy raped you.”
But Elonis also included many knowing winks to the boundaries of the law, posting a link to the Wikipedia post for freedom of speech, statements like “Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?” and teasing lines like “What’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife.”
He argues that his words were artistic expression -- inspired by Eminem songs about killing his ex-wife -- and because he never intended to hurt anyone, that he should enjoy First Amendment protection. He also says that because he never tagged his wife in any of the posts and the two were not Facebook friends, she was not the intended target.
His wife was sufficiently alarmed to get a protection-from-abuse order, and testified at trial that she was afraid for her life and the lives of her children. The jury was instructed not to consider Elonis's stated intent, but to ask whether a "reasonable person" would regard his words as threatening. Elonis was convicted and sentenced to almost four years in prison.
The case has implications far beyond one particularly odious ex-husband, clear from the amicus briefs filed before the court. A coalition of domestic violence groups has urged the court to abide by the "reasonable person test."
Requiring proof that a speaker meant physical harm for a conviction of a threat charge, they wrote, "would leave too many victims of threats without any meaningful protection," particularly when abusers are increasingly using social media and text messaging to intimidate their victims, the groups said. It shouldn't matter, the groups argue, whether Elonis actually planned to act out his words, because the harm was already done. "Threats of violence are, in themselves, harmful—they cause fear and all its attendant damaging and disruptive psychological, emotional, and physical effects."
But though Elonis is not a journalist nor claiming to be one, several press freedom organizations are rallying to his side, including the Reporters Committee for Freedom of the Press, out of a sense that the case could open a slippery slope. "Leaving members of the news media to guess at what a reader or listener might take seriously is likely to lead to a chilling effect as journalists choose to hold back their opinions or a controversial quote, or censor a letter to the editor, out of fear that they could be held responsible for a reader or listener’s overreaction," the press groups, which include newspaper owners and guilds, wrote.
Also urging the court to rule for Elonis -- and thus take into account a speaker's claimed intent when deciding whether something is a true threat -- are controversial protest groups. People for the Ethical Treatment of Animals (PETA) banded together for an amicus brief with anti-abortion groups like Operation Rescue and Pro-Life Action League, who would like more latitude against charges they are threatening abortion providers' lives. "While we do not defend truly threatening or violent behavior, we believe that the boundary demarcating such behavior from protected protest activity must be drawn so as to bring close cases within the ambit of protection," those groups argued.