Free speech doesn’t permit you to make a true threat against the safety of another person. But what’s a true threat? Is it enough that a reasonable listener would consider the threat real? Or do you have to mean it? The US Supreme Court has considered this First Amendment question in the past, but now it’s taking it up in the age of Facebook and gangsta rap—and the answer may well be different to fit a different era.
The case arose in 2010 when Anthony Elonis, then an employee of Dorney Park and Wildwater Kingdom in Allentown, Pennsylvania, began to melt down. His wife had left him, and Elonis responded with a series of highly disturbing and misogynist Facebook postings threatening the amusement park, his wife and an FBI agent who came to investigate him.
Some of these—like the threat to murder his wife and “make it look like a rape”—were written in what you might call standard-issue psycho-killer prose. But in the course of the postings, Elonis shifted to what an appeals court called a “lyric form.”
Essentially, Elonis began to compose his threats using the strophic line familiar to contemporary hip-hop. A representative sample, aimed at the female Federal Bureau of Investigation (FBI) agent goes like this:
“Little Agent Lady stood so close Took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist, and slit her throat.” Its literary merits aside, this text is recognizably poetic. It includes enjambment style, some very rudimentary meter and a rhyme—close/ghost/throat—that would not be out of place in the work of a more accomplished or experienced hip- hop writer.
Its literary merits aside, this text is recognizably poetic. It includes enjambment style, some very rudimentary meter and a rhyme—close/ghost/throat—that would not be out of place in the work of a more accomplished or experienced hip- hop writer. Elonis was charged with violating a federal law that prohibits making threats across interstate lines. He insisted that he intended the threats poetically and didn’t mean them to intimidate. The district court judge instructed the jury that Elonis’s subjective intent didn’t matter. If the jury believed that a reasonable listener would have felt truly threatened, that was enough to convict. The jury convicted Elonis, who got a four-year sentence, and the US Court of Appeals for the Third Circuit upheld the convictions.
Should the speaker’s intent matter when we’re punishing threats? In 2003’s Virginia v. Black case, which involved a state law that criminalized cross-burning intended to intimidate, the Supreme Court seemed to say yes. The court wrote: “‘True threats’ encompass those statements “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’” It went on to say that such a threat exists when “a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” In other words, a true threat doesn’t require that the speaker actually intends to commit the harm he threatens—but it does require that he intends to intimidate the listeners.
Under this argument, if Elonis meant to frighten his wife or the FBI agent or the amusement park, he should be convicted; if he didn’t mean to scare anybody but only to express his frustrations in literary form, he should be protected by the First Amendment. The federal government, both in the Court of Appeals and now before the Supreme Court, argues otherwise. According to the solicitor general, the Supreme Court’s language in the cross- burning case wasn’t intended to create an absolute rule that the speaker must intend to threaten. The solicitor general points out that the cross-burning law already required subjective intent to intimidate, so the court didn’t have to consider the question of a statement that wasn’t subjectively intended as a threat but would be objectively threatening to a third person.
The Supreme Court should reaffirm that the Virginia v. Black standard requiring proof of subjective intent to threaten really is the law for two reasons—one old and one new. The old reason is embedded in the famous 1969 Brandenburg v. Ohio decision, the most influential modern statement of political free-speech rights. The court said that to follow the First Amendment, speech must both be intended to incite imminent violence and also be likely to incite it.
The Brandenburg test is meant to distinguish what the court called “abstract teaching of the moral propriety or even moral necessity for a resort to force and violence” from “preparing a group for violent action and steeling it to such action.” At the core of our free- speech doctrine, then, lies a crucial distinction between abstract speech, which must be protected, and actual, probable injury. That same distinction should be preserved when it comes to violent threats—they must be prohibited if intended to intimidate, but not if meant abstractly. The new reason has to do with social media and contemporary poetic forms such as gangsta rap. Today, if we criminalized all behavior that a reasonable person would understand as threatening, we might significantly limit people’s capacity to post lyrics and poems in public and semi-public forums such as Facebook. Social media platforms are important venues for speech—and they reach many more people than the person who might experience the threat personally. If we invite juries to find speakers criminally responsible without first making the government prove that the speaker intended to threaten, we may substantially weaken our tradition of free speech.
Anthony Elonis doesn’t deserve sympathy or admiration—but he does deserve for the government to prove that he meant to threaten others before he goes to jail. Bloomberg
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