Matthew T. Mangino
December 14, 2014
In 1998, recording artist Marshall Mathers—better known as Eminem—wrote a song about killing his ex-wife Kim. The lyrics included the following:“Come on, we’re going for a ride B-----. Sit up front. We’ll be right back, well I will; you’ll be in the trunk.”
Mathers was not prosecuted for his threatening language. Instead, he went on to win 13 Grammys for similar hard-edged music. Anthony Elonis was not so lucky. In his effort to veil a threat against his estranged wife through the “art” of rap music, Elonis ended up on the wrong side of the law.Elonis was indicted in federal court in Pennsylvania on five counts of interstate communication of illegal threats on Facebook. ‘Rap lyrics’After his wife left him, taking the couple’s children with her, Elonis began posting about her on his Facebook page in the form of “rap lyrics.”
For instance he posted:“There’s one way to love ya, but a thousand ways to kill ya,And 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 b----.”
At the end of his federal trial, according to National Public Radio, the judge instructed the jury that to convict it must find that Elonis’ Facebook posts constituted true threats, meaning that “a reasonable person would foresee that the statements would be interpreted ... as a serious expression of an intent to inflict bodily injury.”He was convicted and sentenced to 44 months in prison.
Elonis appealed to the U.S. Supreme Court, contending that under the U.S. Constitution and federal law, a jury must find not only that a reasonable person would interpret the words as threatening, but that Elonis actually intended his words to be threatening.Elonis’ case arrived at the Supreme Court on Dec. 1.
“How does one prove what’s in somebody else’s mind?” asked Justice Ruth Bader Ginsburg. In this case, she said, a “reasonable person [would] think that the words would put someone in fear.”Elonis’ attorney John Elwood argued to the Supreme Court that the postings were protected by the First Amendment citing the lyrics of various artists including Eminem. "The disclaimer posted all around the page saying basically, ‘this is all for entertainment purposes only’ or that ‘this is venting, don’t take this too seriously,’ and when you put all that in context…he did not have an intent to put anyone in fear,” argued Elwood.According to the Los Angeles Times, none of the justices appeared to agree. Chief Justice John G. Roberts, Jr., although sympathetic to the plight of aspiring artists, said Elonis can claim “it’s therapeutic or it’s art,” but that should not be enough to escape prosecution.Justice Samuel A. Alito said leaning on rules protecting artistic expression “sounds like a road map for threatening a spouse and getting away with it.”
Although much has been made of the connection of this case with Facebook, and the explosion of threatening language on the Internet, the decision’s impact will not be limited to threats on social media.“You’re accountable for the consequences” of your words, argued Deputy Solicitor Gen. Michael Dreeben.
He reminded the high court that it is a federal offense to transmit “any threat to injure” another person via the Internet.Garrett Epps wrote in The Atlantic, “Make it too easy to prove a threat, and government can muzzle those it dislikes; make it too hard, and the rest of us — on the job, on the streets, and in our homes—are at the mercy of men like Elonis.” The Supreme Court is expected to make a decision by summer.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His recent book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino