Be careful, little fingers, what you type

A case before the U.S. Supreme Court attempts to distinguish between harmless ranting over the internet and making illegal threats. Last week, the court heard oral arguments in Elonis v. United States, the case of an ex-wife frightened by the Facebook posts of Anthony Elonis. The Pennsylvania man, angry that his wife had left him, posted messages that she took as threatening. “Did you know that it’s illegal to say I want to kill my wife?” he posted, and, “Hell hath no fury like a crazy man in a kindergarten class,” plus lots more blood-and-gore language.

“He knows that his wife is reading these posts,” Deputy Solicitor General Michael Dreeben told the Court. “He knows that his posts, despite the fact that they’re in the guise of rap music, have instilled fear in her, and he goes out and he ramps up and escalates the threatening character of the statements.”

Elonis was convicted under a federal law that forbids transmitting across state lines any threat to injure someone. He said he didn’t intend to threaten his ex-wife; he was merely expressing his artistry, which was therapeutic for his emotional state. Elonis alerted everyone on his Facebook page that, “all content posted on this site is for entertainment purposes only.” But Justice Samuel Alito didn’t buy it.

“This sounds like a roadmap for threatening a spouse and getting away with it,” he said. “So you put it in rhyme and you put some stuff about the internet on it and you say, I’m an aspiring rap artist. And so then you are free from prosecution.”

Dreeben argued any reasonable person would know Elonis knew what he was saying, and he meant to scare her.

But John Elwood, Elonis’ lawyer, argued that trying to judge speakers’ intent could lead to prosecuting innocent people.

“I think many of the speakers who are online and many of the people who are being prosecuted now are teenagers who are essentially shooting off their mouths or making sort of ill-timed sarcastic comments which wind up getting them thrown in jail,” Elwood said. He cited a pending case in Texas where a teenager’s violent chat room language, meant as comedy, landed him in jail for months.

“Like somebody in Ferguson, Mo., the night of the riots, tweets a photo of law enforcement officers over the motto, the old Jeffersonian motto, ‘The tree of liberty must be refreshed … with the blood of … tyrants.’ I mean, would a reasonable person foresee that that would be viewed as a threat by the police officers?” Elwood asked.

Dreeben, for the government, separated out entertainment, like chat room talk, tweets, or violent lyrics at an Eminem concert, which do not target a particular person. A reasonable person would not think of those as direct threats. But deciding who is reasonable and who is not is difficult when it comes to matters of taste, Chief Justice John Roberts pointed out.

“If you have a statement made in the style of rap music, as this one or several of these were, is the reasonable person supposed to be someone familiar with that style and the use of what might be viewed as threatening words in connection with that music or not?” Roberts asked.

Dreeben said it depends on who the targeted speaker is. And Elonis obviously knew his ex-wife. So, does the law require proof of Elonis’ intent to threaten, or is it enough to show that areasonable person would think the statements were threatening? The Supreme Court will announce its decision on the matter sometime before the end of this term in June.