On Monday, the U.S. Supreme Court handed down a big decision that overturns the conviction of Anthony Elonis for making threats on Facebook against his estranged wife. The opinion, authored by Chief Justice John Roberts, makes clear that a criminal defendant’s intent is important. However, the ruling leaves open questions about the circumstances by which people can get in trouble for being menacing online.
Elonis is a 31-year-old Pennsylvania man who received a 44-month sentence for something he wrote on Facebook.
The case became a closely-watched free speech battle when Elonis argued that his social media postings were stylized as rap music lyrics. He wrote on Facebook under the nom de plume, “Tone Dougie,” with comments like:
“Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms of her partner [laughter]
So the next time you knock, you best be serving a warrant
And bring yo’ SWAT and an explosives expert while you’re at it”
Elonis made some attempts to distinguish what he was doing, writing at one point, “Art is about pushing limits. I’m willing to go to jail for my Constitutional rights. Are you?”
Nevertheless, Elonis’s co-workers and friends read the social media posts to be actual threats against his wife.
At trial, a judge instructed the jury about the meaning of a “true threat.” According to the judge, it’s when a defendant “intentionally makes a statement… wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates… as a serious expression of an intention to inflict bodily injury or take the life of an individual.”
On appeal, the government defended an instruction that puts emphasis on a reader’s interpretation while Elonis’ lawyers argued that a jury should have been asked to examine what Elonis had in mind with his Internet postings.
Some in the legal community worried about the implications of a ruling against Elonis because art is often prone to misinterpretation and rap music in particular has a lot of hyperbole. At the oral hearing, Justice Roberts himself quoted Eminem’s ” ’97 Bonnie and Clyde,” a rap that imagined Slim Shady’s dead wife.
Today’s opinion doesn’t go much into the finer points of what the U.S. deputy solicitor general called “rap artistry,” but does make clear that “negligence is not sufficient to support a conviction” under the relevant threats statute.
Roberts, along with six other justices, agree that the defendant’s “mental state” must be considered. Reading between the lines, this could also mean that one’s artistic intent could be a defense from prosecution. But the majority opinion refuses to go the next step by pointing to some standard by which prosecutors can show a true threat online.
Justice Samuel Alito describes what today’s opinion doesn’t address in a concurring opinion.
“The Court’s disposition of this case is certain to cause confusion and serious problems,” he writes. “The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that the words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.”
This article originally appeared in THR.com.