The U.S. Supreme Court announced last week that it will hear the appeal of one Anthony Elonis, who is serving a 44-month federal prison sentence for posting on his Facebook page threats against his ex-wife.
Although few seriously expect Elonis' conviction to be overturned, the case is not nearly as simple as it seems. At the very least, scholars and lawyers hope the justices will bring clarity to an area that is in desperate need of it: the constitutional limits on government power to punish online speech.
A bit of background: After the breakup of his seven-year marriage, Elonis began to post bizarre images on his Facebook page. He was fired from his job, for example, after posting a photograph of himself holding a knife to the throat of a fellow employee who had charged him with sexual harassment. The photo was captioned, "I wish."
Elonis posted a lot more threats online, mostly against his estranged wife. The messages were fairly awful, and there were lots of them.
Just a tiny sample, edited down for a general readership: "If I only knew then what I know now, I would have . . . dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder." "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts."
A state court judge classified the postings as abuse and ordered Elonis to stop. In response, Elonis came up with this: "Did you know that it's illegal for me to say I want to kill my wife? It's illegal. It's indirect criminal contempt. It's one of the only sentences that I'm not allowed to say."
And this is just a fraction of the scary stuff Elonis posted. It's easy to see why his ex-wife was terrified. Elonis, however, says the whole thing is a big misunderstanding. He didn't intend the threats as threats. He was letting off steam, it seems, inspired by the lyrics of the rapper Eminem, who wrote and recorded a song about brutally murdering his own ex-wife.
But Eminem's song is evidently art. A reader at rapgenius.com commented: "This is by far one of the most disturbing songs I have ever heard in my whole life. And it's horrible. But it is exactly what rap should be."
No doubt Elonis would agree: Words strung together can sound horrible and yet be art. Even bad art, he might contend, is entitled to constitutional protection. As he wrote on his Facebook page: "Art is about pushing limits."
(Note, please, that I am not classifying Elonis as an artist; I am insufficiently familiar with the Eminem oeuvre to offer an opinion.)
The law in this area is a bit of a mess. The courts decide cases like this according to what is known as the "true threat" doctrine — a rule that tries to get around the obvious First Amendment problems by creating a range of circumstances in which what sounds like a threat is nevertheless the subject of constitutional protection.
The problem is that the true-threat doctrine can be understood in two ways. Elonis' claim is that what should matter is whether he intended his postings as true threats. If not — more to the point, if the prosecution cannot prove beyond a reasonable doubt that he did — then he cannot be convicted. Many courts, however, approach the question from the other way: Would a reasonable person interpret the postings as true threats? If so, then his speech is not protected by the First Amendment.