SCOTUS hears Facebook threats case; Chief Justice quotes Eminem

The U.S. Supreme Court heard arguments on Monday about a relatively novel topic: threats on Facebook.  SCOTUS Blog reports that the case involved posts by Anthony Elonis, a Pennsylvania man whose wife left him in 2010, taking their two children. Elonis began posting on Facebook, making threatening and violent statements in the form of rap lyrics. These often referred to his ex-wife. Elonis also made statements about shooting up a kindergarten class and detonating a bomb strapped to his body. He made the latter post after the FBI had visited him about his prior threatening statements. The FBI then arrested him and charged him with violating 18 U.S.C. § 875(c), which makes it a crime to threaten to injure another using avenues of interstate commerce.

Elonis was convicted of violating this statute and appealed. Elonis argues that the standard the trial court applied when evaluating his conduct under this statute was incorrect. The lower court had instructed the jury to use a reasonable person standard, which meant that if a reasonable person reading Elonis' posts would believe that they were intended as threats he must be convicted. Elonis claims that the correct standard would have been a subjective one and that the court should have determined whether he personally had the intent to threaten when he made those posts.

According to the New York Times, the Supreme Court has held that "true threats" are not protected speech under the First Amendment, but there has not been significant guidance about what this means. At issue on appeal is Elonis' claim that the First Amendment requires the subjective intent test be applied to his posts to analyze whether they amount to true threats. The Court will also analyze the meaning of the statute, and whether it requires subjective intent. According to another SCOTUS Blog post, if the Court were to find that the statute itself required intent, then they would likely sidestep the First Amendment issue, because Elonis would most likely have a new trial on remand.

The case could potentially have a wide-ranging impact on a broad spectrum of internet users. This ranges from domestic violence victims, who could benefit from greater protections offered by the standard employed by the government in this case, to artists and musicians, whose ability to freely post materials and song lyrics may be limited if the government were to prevail. The New York Times reported that Chief Justice John Roberts emphasized the impact that this might have on musicians during oral arguments on Monday by quoting lyrics to Eminem's "'97 Bonnie and Clyde" from the bench and inquiring whether the rap artist could be prosecuted for that song, which includes violent imagery that appears to be about his ex-wife.