The Supreme Court has agreed to hear a case that will decide whether posting violent fantasies on your own Facebook wall can count as a criminal threat to others. Today, the court said that it would take on Anthony Elonis v. United States, a controversial ruling that landed a bitter would-be rapper in jail for over three years. The case is fundamentally about perennial free speech issues, but it could also set a precedent for how courts consider social media and other posts. When violent fantasies are posted publicly and easy to find, does it matter whether they was actually sent to the target?
In 2010, the 27-year-old Elonis used Facebook to express his rage after his wife left with their two children. Elonis, who had lost his job in the wake of the split, posted both ordinary text updates and self-written rap lyrics about people he supposedly intended to kill. At one point he commented on a post by his sister-in-law, suggesting that his son "dress up as matricide for Halloween" by putting his wife's head on a stick. After his wife obtained a protection order a month later, he vented on Facebook with an adaptation of a sketch by comedy troupe the Whitest Kids U Know, replacing their jokes about killing the President with ones about killing his wife. He added his own ending: "Art is about pushing limits. I'm willing to go to jail for my constitutional rights. Are you?" His self-written lyrics, which he said referenced songs by Eminem and others, talked about killing schoolchildren and blowing up police who might try to stop him from shooting his ex-wife.
Fold up your [Protection From Abuse order] and put in your pocket
Is it thick enough to stop a bullet?
And if worse comes to worse
I've got enough explosives
to take care of the state police and the sheriff's department
An FBI agent became aware of his posts and visited him, and he subsequently posted detailed lyrics about slitting her throat, which was apparently the final straw. He was arrested and charged with threatening his coworkers, his wife, police officers, kindergarteners, and the agent, under a law that bans using interstate commerce (in this case, the internet) to send "any communication containing any threat to kidnap any person or any threat to injure the person of another." In late 2011, he was sentenced to 44 months in prison, which he concluded in February, and three years of supervised release.
The issue doesn't hinge on the traditional questions about whether the posts were protected speech, but on Elonis' claim that he never intended them to be intimidating or threatening. He was not Facebook friends with his wife, and other than the comment to his sister-in-law, he posted the lyrics only on his own wall and did not tag any of the people involved. His posts wouldn't have been difficult to find, but the chance of stumbling across them was lower than if he'd sent them directly, and his account used a lightly veiled variation of his name. They cite the 2003 decision Virginia v. Black, which found that the act of simply burning a cross, though it almost universally indicates hatred and a desire to harm, can't automatically be considered a threat unless it's explicitly meant to intimidate others. In other words, even if Elonis' work expressed a real wish to hurt his ex-wife and others, he shouldn't have been convicted if he never meant for them to see the lyrics.
The government has countered this by saying that even if he may not have meant his ex-wife or other "targets" to find the posts, he had acted recklessly and irresponsibly by making the lyrics public. No matter what his intent, the effect was still obvious and negative. So far, his conviction has held up in both a district court and an appeals court, but the larger topic is murky enough enough that it will take a Supreme Court decision, at the very least, to clear things up.