Supreme Court justices met rap music and freewheeling social media on Monday, in a key case testing when incendiary words become criminal threats.
During a PG-rated oral argument, justices parsed the R-rated rhetoric of a Pennsylvania resident imprisoned for what he wrote on Facebook. The man likened his words to rap lyrics; prosecutors called them dangerous; and the 59-year-old chief justice quoted rap artist Eminem to make a point.
“That does subject to prosecution the lyrics that a lot of rap artists use,” Chief Justice John Roberts said of the government’s position.
The case before the justices involved Facebook postings by Anthony Elonis, who had adopted the rap persona Tone Dougie. The posts were punctuated by brutally violent language, most of it directed against his estranged wife.
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He wrote that he would like to see a Halloween costume that included his wife’s “head on a stick.” He talked about “making a name for myself” with a school shooting, saying, “Hell hath no fury like a crazy man in a kindergarten class.” He fantasized about killing an FBI agent.
Roberts’ court has issued prior decisions protecting noxious speech, and several justices joined the chief Monday in suggesting a higher standard for prosecution of threats. Justice Sonia Sotomayor noted that “we’ve been loath to create more exceptions to the First Amendment,” and at least one colleague, Justice Elena Kagan, echoed the point.
“We typically say that the First Amendment requires a kind of a buffer zone to ensure that even stuff that is wrongful maybe is permitted because we don’t want to chill innocent behavior,” Kagan said.
The central legal question is what determines whether a statement is a true threat that can be prosecuted. One test is whether a reasonable speaker would foresee that the statement would be interpreted as a threat. An alternative, harder-to-reach test would require proving a subjective intent to threaten.
Attorney John P. Elwood, representing Elonis, elaborated Monday that an intent to threaten could be inferred if a reasonable speaker would know with certainty that the words would be perceived as threatening.
But Deputy Solicitor General Michael Dreeben, representing the Obama administration, said: “The presumption is that when you speak English words and you’re an English speaker, you’re accountable for the consequences. There are plenty of ways to express yourself without doing it in a way that will lead people to think this guy is about to hurt somebody.”
The case, Elonis v. United States, has its roots in a May 2010 domestic dispute, when Elonis’ wife moved out of their home with their two young children. After Elonis was fired from his job at an amusement park, his hostile-sounding Facebook postings accelerated.
“There’s one way to love you but a thousand ways to kill you,” Elonis posted. “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
When his wife secured a protection-from-abuse order by a state judge, Elonis went on Facebook to declare: “Fold up your PFA and put it in your pocket. Is it thick enough to stop a bullet?”
Elonis was convicted of making threatening communications and sentenced to 44 months in prison. He was freed in February.
On Monday, Roberts recited lines from Eminem’s ode to familial revenge, “Bonnie and Clyde,” to press Dreeben on whether the rapper, too, could be prosecuted for what sounds like a drowning threat. Dreeben countered that Emimen was safe because “he said it at a concert where people are going to be entertained.”
Justice Samuel Alito sounded skeptical of Elonis, saying his claims could lead to a dangerous precedent.
“This sounds like a road map for threatening a spouse and getting away with it,” Alito said. “You put it in rhyme and put some stuff about the Internet on it, and you say, ‘I’m an aspiring rap artist,’ and so then you’re free from prosecution.”
Some justices seemed nervous about placing too stringent a burden on prosecutors.
“How does one prove what’s in somebody else’s mind?” asked Justice Ruth Bader Ginsburg, returning to the court five days after having a stent implanted to clear a blocked artery.
A ruling is expected by the end of June.
The New York Times contributed to this report.