Supreme Court gives Facebook 'rapper' second chance in threat case

Richard Wolf | USA TODAY

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WASHINGTON — The Supreme Court defended free speech on the Internet Monday, even when it comes to an angry, self-styled rapper whose rants made his wife, co-workers and others fear for their lives.

Language such as "Hell hath no fury like a crazy man in a kindergarten class" is only criminal, the justices ruled, if it's intended as a threat -- not if it's merely negligent.

But the 8-1 decision, written with several references to rap lyrics by Chief Justice John Roberts, came with caveats that made it just a temporary reprieve for the Pennsylvania man who served 44 months in prison for his postings. And it did not apply more broadly to other free speech cases, because it was based on a specific criminal statute, not the First Amendment.

Still, it represented at least a small victory for Anthony Elonis and those like him whose threatening words on Facebook or similar social media sites may instill fear in their targets. It was hailed by free-speech advocates and panned by crime victims' groups.

The case represented a critical test of free speech in the Internet age, when words that seem threatening emanate from violent spouses and video game-players alike. The justices were seeking a rule that could result in locking up the former while letting the latter off the hook.

Elonis' case offered a perfect test. After his wife, Tara, left him and took their two children, he lost his job at an Allentown, Pa., amusement park and began a series of dark Facebook posts containing explicit references to violence against his wife, co-workers, kindergartners, police and the FBI.

The question that has split federal appeals courts is whether the threats must be intentional, or whether they are illegal just because a "reasonable person" -- such as those on the receiving end -- takes them seriously. Elonis was convicted under the latter standard; a majority of justices ruled that's not sufficient.

"The jury was instructed that the government need prove only that a reasonable person would regard Elonis' communications as threats, and that was error," Roberts wrote. "Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state."

Elonis might not be off the hook, however. The high court's ruling means his case will be sent back to a federal appeals court to determine whether he meant what he posted or was at least reckless in posting it.

While Roberts said "negligence is not sufficient to support a conviction," he made clear that the threat would be a crime if it was intended as a threat or if Elonis knew it would be perceived as one.

Justice Clarence Thomas dissented, and Justice Samuel Alito dissented in part. Both said mere recklessness on Elonis' part would be sufficient for conviction; Roberts left it up to the lower court to decide that question.

"The court's disposition of this case is certain to cause confusion and serious problems," Alito wrote. While he, too, would have reversed Elonis' conviction and sent the case back for further review, he said the court should have defined what does and does not constitute a true threat.

"The court declines to say," Alito lamented. "Attorneys and judges are left to guess. This will have regrettable consequences."

Elonis was 27 and recently unemployed in Pennsylvania five years ago when he began posting threats against his estranged wife and others, from a generic kindergarten class to the FBI agents who came to his door.

Sometimes, he imitated rap lyrics. Other times, he referred to his First Amendment rights. His lawyers said it was a form of therapy as well as art.

"Did you know that it's illegal for me to say I want to kill my wife?" Elonis wrote in one of many posts. "It's illegal. It's indirect criminal contempt. It's one of the only sentences that I'm not allowed to say."

One lengthy diatribe copied nearly word-for-word a satirical sketch by The Whitest Kids U' Know comedy troupe, concluding with Elonis' own summation: "Art is about pushing limits. I'm willing to go to jail for my constitutional rights. Are you?"

Elonis' attorneys said he never intended to carry out his violent threats. On the Internet, they said, context is lost and words can be misinterpreted. Still, he was convicted on four counts of transmitting threats and sentenced to 44 months in prison. He completed his term a year ago.

The high court ruling was hailed by defenders of free speech.

"Today's decision properly recognizes that the law has for centuries required the government to prove criminal intent before putting someone in jail," said Steven Shapiro, national legal director of the American Civil Liberties Union. "That principle is especially important when a prosecution is based on a defendant's words.The Internet does not change this long-standing rule."

The government said the standard used by lower courts — that Elonis' words on Facebook could be viewed as threats by a reasonable person reading them — was sufficient, and his intent did not have to be proved.

"Juries are fully capable of distinguishing between metaphorical expression of strong emotions and statements that have the clear sinister meaning of a threat," its brief said. Rap music has thrived under the "reasonable person" standard, it noted, without ensnaring popular rappers such as Eminem.

The government was backed by groups such as the National Network to End Domestic Violence, which cited a survey of 759 victims' service agencies that found nearly 90% of them had cases of threats delivered via technology. Text messages were the most prevalent form, followed by social media and email. Women between the ages of 18 and 24 were the most frequent targets.

That group criticized Monday's ruling while holding out hope the federal appeals court still could find Elonis guilty. Until then, it said, abuse victims would be harder to protect from threats.

The current Supreme Court has been a strong defender of free speech rights, going so far as to permit distasteful protests at military funerals and online videos depicting animal torture.

But it also has drawn lines, ruling last term against the free speech rights of a previously convicted military protester and opponents of then-President George W. Bush who were moved from their protest site by the Secret Service.