Anthony Elonis was sentenced to jail time for making violent threats against estranged wife, but brought appeal based on grounds comments weren’t to be taken seriously

The supreme court ventured nervously into the worlds of internet trolling and rap music on Monday as it sought to avoid establishing new restrictions on free speech to deal with the case of a Pennsylvania man who posted violent threats against his estranged wife on Facebook.



Anthony Elonis was sentenced to 44 months in prison for making those threats and other online comments deemed to threaten school shootings and FBI officers, but brought his appeal all the way to Washington on the grounds that what he’d posted was not meant to be taken seriously and was instead a form of anger management therapy that made him less likely to act out violent fantasies.

Few of the nine justices who heard the hour-long oral arguments in the case appeared to have much sympathy for Elonis, but several expressed concern that prosecutors were interpreting the definition of threatening language too broadly and risked paralysing harmless internet chat or chilling political dissent in future.

“Many of the speakers who are online and many of the people who are being prosecuted now are teenagers who are essentially shooting off their mouths or making sort of ill-timed, sarcastic comments which wind up getting them thrown in jail,” warned John Elwood, the lawyer representing Elonis.

He also gave hypothetical cases of a protestor in Ferguson tweeting Thomas Jefferson’s famous line about “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants” or anti-abortion campaigners quoting from the “turn or burn” passage in the Bible as instances which might similarly be deemed violent threats.

Though the court’s final opinion will not be issued for several weeks, the arguments appeared to sway a cross section of justices from right to left who worried about free speech implications.

“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 behaviour,” said justice Elena Kagan.

Justice Sonia Sotomayor added: “We’ve been loath to create more exceptions to the First Amendment.”

Chief Justice John Roberts, who is more conservative than justices Kagan and Sotomayor but known to be a fierce free speech advocate, quoted fluently from Eminem lyrics to show how mainstream rap artists had said things similar to what Elonis wrote.

The justices had been provided with a scholarly primer on the history of rap music before the case and several acknowledged similarities with the case.

“What about the language at pages 54 to 55 of the Petitioner’s brief? You know, ‘Da-da make a nice bed for mommy at the bottom of the lake,’ ‘tie a rope around a rock,’” Roberts asked the government lawyer Michael Dreeben.

“This is during the context of a domestic dispute between a husband and wife,” added Roberts. “‘There goes mama splashing in the water, no more fighting with dad,’ you know, all that stuff. Now, under your test, could that be prosecuted?”

When Dreeben replied: “No. Because if you look at the context of these statements.” The chief justice shot back: “Because Eminem said it instead of somebody else?”

The government argues it was sufficient to prove that Elonis must have known his threats would scare his wife and it was not necessary to show that he intended this to happen.

“There are plenty of ways to express yourself without leaving people with the view that ‘hey, that guy is about to hurt somebody’,” said Dreeben. “The problems [with threats] are that they disrupt people’s activities and they put people in fear,” he added.

Several justices, including liberal-leaning Ruth Bader Ginsburg, also showed anxiety with the idea that prosecutors would have to prove intent in future. Domestic violence charities, for example, filed a supporting brief to the court warning of the difficulty in bringing many important prosecutions if the criminal bar for threats was set higher than lawmakers intended.

“Congress reasonably presumed that people who are speakers of the English language and know the meaning of the words they speak are accountable for the consequences of those words,” insisted Dreeben.

Justice Samuel Alito wondered whether adding “LOL” or other disclaimers at the end of a Facebook post was just “a road map for threatening your spouse and getting away with it.”

Justices Antonin Scalia and Stephen Breyer instead clashed on the likelihood of people inadvertently making violent threats in this way.

“People do say things in domestic disputes that they are awfully sorry about later,” said Breyer. Scalia retorted this wrongly normalised abhorrent behaviour and “defined deviancy down”, referencing an alliteration first coined by Senator Daniel Patrick Moynihan about what he saw as an overly permissive society.

But Scalia, perhaps the most conservative justice on the bench, was alone in appearing to dismiss the free speech arguments outright, insisting “this language is not worth very much”.

On balance the bench appeared to be leaning toward returning the case to the original court for a retrial under a narrower definition of “threat”, rather than setting in stone a new legal precedent on the growing issue of internet threats and risking damage to free speech protections.