The case of Elonis v. United States has received a lot of attention because it touches on contemporary issues like Facebook postings and rap lyrics, but the First Amendment implications of the case are, in my opinion, overblown. Anthony Elonis posted thinly veiled—and quite frightening—threats against his estranged wife on Facebook, written in that sort of childish way that’s supposed to provide him with plausible deniability. For example, in one comment, he wrote “Did you know that it's illegal for me to say I want to kill my wife?” Other comments were phrased as rap lyrics, such as “Fold up your protective order and put in your pocket. / Is it thick enough to stop a bullet?” Although Elonis was not Facebook friends with his wife (who had indeed obtained a protective order against him), the two had mutual friends, so Elonis was aware that others would let her know what he was saying. They did, and Elonis was charged with communicating an illegal threat, in violation of federal law.
The question the Court must decide is whether he can be convicted of threatening simply because a person reading his language and knowing the context would interpret it as a threat, or whether the government must also prove that he actually intended it to be taken as a threat. This is a significant difference, Elonis’s lawyers argue, because if the first rule applies, then rap lyrics like Eminem’s raps fantasizing about murdering his ex-wife, or other types of statements, might be subject to prosecution, in violation of the First Amendment. Another, probably better example that Elonis’s lawyers gave was a tweet of a photo of rioters with the words “the tree of liberty must be refreshed with the blood of tyrants.” Would that qualify as a threat?
But while this seems to involve important questions of free speech, I think that’s mostly an illusion. As the government emphasized, even under the rule that says it’s a threat if a reasonable hearer would think it was a threat, the context must still be taken into account. The reason Eminem hasn’t been arrested for issuing threats is that a reasonable person, knowing the context, would know that these aren’t really threats. Also, the prosecutor is still required to prove the case beyond a reasonable doubt. That’s a high enough hurdle, the government argues, to preserve First Amendment values.
Most importantly, a rule that says that threatening language is protected by the First Amendment so long as the speaker didn’t subjectively intend it to be a threat would be absurdly easy to manipulate. Elonis claims that the purported rap lyrics in which he said, for instance, “Hell hath no fury like a crazy man in a kindergarten class, / The only question is...which one,” were just “therapeutic” and “venting” and “for entertainment purposes only.” A wan disclaimer like that can’t be enough to shield a person who engages in serious threats from being punished. As Justice Scalia pointed out in oral argument, it’s common law assault to threaten someone in such a way that she reasonably perceives herself as being seriously at risk. Any woman in the position of Elonis’s unfortunate wife would certainly have felt afraid, and rightly so. He should not be able to get out of jail free by saying he was kidding, or, worse, only “venting.” Venting through threats is no more constitutionally protected than is venting by blowing stuff up.
This point seems pretty well established given the news this week that Elonis sent a similar threat to a U.S. prosecutor last year that read, “I am rapidly approaching the date of my release. Accordingly, I would like to begin researching the ordinances of the municipality in which you reside. I simply do not wish to run afoul of any of them when I set fire to a cross in your yard,” followed by the emoticon “:-p,” and the words “I just thought you would appreciate my new found respect for the law.”
Context matters—everyone agrees about that. And it’s the context that distinguishes the ordinary kinds of communication, protected by the First Amendment, from those kinds of statements, like threats or defamatory comments, that are crimes. The law recognizes that a threat is a kind of injury, over and above the language in which it is communicated. If I were to move my hand swiftly toward your face, and you flinch, that’s an assault because you’ve been made to reasonably fear for your safety. When exactly the same act is carried out through language, the protection that communication normally receives should not cover up the criminality of the underlying assault. Holding Elonis responsible for his actions threatens no serious damage to the First Amendment.
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