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On Monday, the U.S. Supreme Court delved into modern times by looking at social media, rap music and how to balance an individual’s freedom to shoot from the hip with society’s interest in protecting against those who would cause fear and disruption. Anyone betting that Eminem would be the rapper to be mentioned today at the high court is a little richer.
The case is Elonis v. United States, featuring a 31-year-old Pennsylvania man named Anthony Elonis who in 2011 was convicted of making threats on Facebook against his estranged wife. For writing stuff like “There’s one way to love you but a thousand ways to kill you,” Elonis got a 44-month prison sentence.
Elonis believes his Facebook posts were misinterpreted, and on appeal, his lawyers have made the argument that his social media postings are stylized as rap music lyrics. As a result, in the months leading up to today’s hearing, the nine justices of the high court got an earful about both the history of hip-hop and contemporary modes of communication.
Most directly, the case examines what’s a “true threat” for the purposes of criminal prosecution, but given the widespread acceptance that online rants and rap music can often be prone to hyperbole, the coming decision figures to be a landmark First Amendment one that weighs a speaker’s intent versus a reader’s understanding — a balancing act that could easily be applied in other legal contexts like an analysis of defamation.
On behalf of Elonis, attorney John Elwood urged the high court to adopt a “specific intent” standard, namely that a jury should examine what his client had in mind with his Internet postings. Meanwhile, the federal government is emphasizing how a “reasonable person” would interpret what Elwood had to say.
In this case, context cuts both ways — a statement may be less threatening if viewed through the prism of an aspiring rapper who is attempting to boast or more threatening if seen as coming from a guy who lost his wife and kids, got fired from his job and is broadcasting his thoughts to those close to him.
Chief Justice John Roberts emphasized context throughout the hearing, putting forward the scenario of teenagers in a chat room playing a game. “You don’t take what is on the Internet in the abstract and say, ‘This person wants to do something horrible,’ ” said Roberts. “You are familiar with the context.”
“That is true,” responded Elwood. “But the thing is everyone has a different view of what context matters.”
Roberts came back to this point when questioning Deputy Solicitor General Michael Dreeben.
He asked, “If you have a statement made in the style of rap music … is the reasonable person supposed to be someone familiar with that style and the use of what might be viewed as threatening words in connection with that music …?”
Dreeben answered that it depends on whom the speaker is speaking to — that it matters if it’s going to a general audience for the purposes of entertainment. The government attorney waived off Robert’s concern that lyrics from lots of rap artists might be susceptible to prosecution.
“So how do you start out if you want to be a rap artist?” Roberts then asked. “Your first communication you can’t say, ‘I’m an artist,’ right?”
“I think that you have perfect freedom to engage in rap artistry,” responded Dreeben. “What you don’t have perfect freedom to do is to make statements that are like the ones in this case where, after the individual receives a protection from abuse order from a court which was based on Facebook posts that his wife took as threatening, he comes out with a post and says fold up that PFA and put it in your pocket, will it stop a bullet? He knows that his wife is reading these posts.”
If that’s not clear enough, the argument gets a rehash when Roberts quotes Eminem’s ” ’97 Bonnie and Clyde,” imagining Slim Shady’s dead wife.
“What about the language at pages 54 to 55 of the Petitioner’s brief?” asks the chief justice. “You know, ‘Dada make a nice bed for mommy at the bottom of the lake,’ ‘tie a rope around a rock,’ this is during the context of a domestic dispute between a husband and wife. ‘There goes mama splashing in the water, no more fighting with dad,’ you know, all that stuff.”
But Eminem was only trying to entertain at a concert, defended Dreeben.
“It wasn’t as if [Eminem] stated it to her in private or on a Facebook page after having received a protection from abuse order,” said the government lawyer. “It wasn’t as if he appropriated a style of rap that wasn’t anything that he had been doing previously in the marriage and all of a sudden tried to express violent statements that way.”
When it was time for Elwood to give his rebuttal, he argued that the government’s position is tantamount to imposing five years of felony liability anytime the understanding of a speaker and listener gets crossed. Elwood said Elonis’ adoption of rap wasn’t a “recent invention,” that his postings included “long and painful-to-read rap which has nothing to do with his wife,” and that in response to one Facebook friend, his client posted something like, “I do this for me; it’s therapeutic.”
“There is stuff you can point to to show that there was a misunderstanding between the two of them,” said Elwood, referring to his client and his client’s estranged wife. “And, again, you can imagine a situation where somebody says, ‘I’m posting this for entertainment purposes only.’ “
Not every justice was buying this.
“Well, this sounds like a roadmap for threatening a spouse and getting away with it,” responded Justice Samuel Alito. “You put it in rhyme and you put some stuff about the Internet on it and you say, ‘I’m an aspiring rap artist.'”
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