Moral Low Ground

Civil Liberties

Elonis v. United States: Supreme Court Considers Facebook Death Threat Case

supreme court detail by mark fischer

The US Supreme Court is hearing oral arguments in a closely watched case testing the limits of free speech on social media.

The high court is considering the case of Anthony Elonis, a Pennsylvania man who was sentenced to nearly four years behind bars for posting graphically violent rap lyrics in a Facebook post about killing his wife.

“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,” one post read.

Other posts discussed stabbing a female FBI agent and shooting children. Federal law forbids making interstate threats.

Elonis’ wife, who said she felt threatened by his posts, sought court protection. Elonis was subsequently indicted on five counts of interstate communication of illegal threats. He was convicted and sentenced to four years in federal prison.

But Elonis’ attorneys argue his violent Facebook posts shouldn’t be taken seriously, and that their client was exercising his constitutional right to free speech. Elonis called his menacing posts “therapeutic” and claimed they helped him deal with the sadness of a failing marriage, CNN reports.

Deputy Solicitor General Michael Dreeben, arguing for the government, told the justices that Elonis’ intentions are irrelevant and that what matters is whether a reasonable person would feel threatened by the posts.

“We want a standard to hold people accountable,” said Dreeben, adding that Elonis’ ‘rap defense’ lacked substance because the “clear purpose” of rap lyrics is “entertainment.”

While Justice Sonya Sotomayor said the Court “has been loathe to create more exceptions to the First Amendment,” Justice Samuel Alito opined that “this sounds like a road map for threatening a spouse and getting away with it.”

“So you put it in a rhyme…and you say ‘I’m an aspiring rap artist’ and so then you are free from prosecution,” a skeptical Alito said.

Justice Antonin Scalia, who like Alito has upheld free speech rights for corporations—which are people, according to the highly controversial 2010 Citizens United v. Federal Election Commission ruling, seemed hesitant to extend such protections to Elonis’ Facebook posts.

Scalia said the government would consider such posts to be threats only if they could “reasonably put somebody in fear.”

“It may be a low standard,” Scalia said, “but in my mind it doesn’t eliminate a whole lot of valuable speech at all [from First Amendment protection].”

The Supreme Court case is Elonis v. United States. A ruling is expected by the end of June, 2015.

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