If there’s one thing the Supreme Court hates doing, it’s limiting free speech. But on Tuesday the justices indicated they might do just that when it comes to threats of violence posted online.
None of the justices expressed sympathy for the defendant in Elonis v. United States, Anthony Elonis, who in 2010 was convicted of violating a federal law by threatening his estranged wife in a series of disturbing posts fantasizing about harming her on his public Facebook page. He was sentenced to nearly four years in prison.
Elonis claims he didn’t intend to threaten anyone, and that his writings were therapeutic and inspired by rap music. But the justices weren’t buying it.
“This sounds like a roadmap for threatening a spouse and getting away with it,” Justice Samuel Alito told the lawyer defending Elonis when he argued that the posts were a misunderstanding between Elonic and his wife, Tara Elonis.
Justice Antonin Scalia said “physical threats” are not common in marital disputes. “I think that’s rather unusual, even in the heat of anger,” he said.
At issue is whether federal law and the First Amendment require that a person intended to threaten someone in order to be convicted, or merely that the language in context would be read by a reasonable person as a “true threat.” Elonis says there must be intent to injure while the Obama administration wants the “true threat” standard. Lower courts sided with the government, but the Supreme Court has never addressed this question.
In one comment responding to a Facebook post by Tara’s sister, Elonis suggested a Halloween costume of Tara’s “head on a stick.” His own Facebook postings included this one: “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. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut.”
The justices were largely preoccupied with the unintended consequences of circumscribing free speech, quizzing Deputy Solicitor General Michael Dreeben with a variety of hypotheticals about whether the government’s standard could end up implicating an innocent person.
“The First Amendment requires a kind of buffer zone … because we don’t want to chill innocent behavior,” Justice Elena Kagan said.
Chief Justice John Roberts wondered if similarly hostile language expressed by Eminem at a concert would implicate him, to which Dreeben said it would not because a reasonable person would recognize that to be entertainment for an audience. Dreeben said the government’s interpretation of the law does not violate a person’s “freedom to engage in rap artistry.”
When Justice Stephen Breyer dove into a lengthy hypothetical scenario, as he often does, it appeared to bore Alito, who rocked back and forth in his chair and gazed at the ceiling.
In one of the lighter moments of the hearing, Roberts pondered how a defeat for Elonis would affect perceivably threatening speech from “a reasonable teenager on the Internet,” to which Dreeben responded, “If there is such a thing.”
Justice Sonia Sotomayor summed up the Supreme Court’s dilemma in the final moments of the arguments, saying, “We’ve been loath to create more exceptions to the First Amendment.”
