Further Reading SCOTUS to weigh in on when online rants become criminal threats

Lawyers trying to get the Supreme Court to reverse a four-year prison term handed to a Pennsylvania man who published violent rap-style Facebook rants told the high court that his client was charged, in part, for referencing an Eminem song.

In the high court's upcoming term, the justices will hear arguments on the legal parameters of online speech, when a threat becomes deemed a "true threat" and not protected by the First Amendment. Defendant Anthony Elonis' 2010 Facebook rants concerned attacks on an elementary school, his estranged wife, and even the FBI.

His attorneys and other scholars who have weighed in suggest that the defendant, who was going through a divorce, was taking out his anger in a manner similar to the lyrics in rap music. He never intended to carry out any threats he posted on Facebook, they argue.

Here is one of the 2010 Facebook posts that resulted in a prison sentence, according to the defendant's brief (PDF) to the Supreme Court last week.

That’s it, I’ve had about enough I’m checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a kindergarten class The only question is . . . which one?

Elonis' lawyers told the justices "That post was the basis for Count Four of the indictment. Another Facebook user 'liked' the post.... Petitioner testified that his post was a reference to an Eminem song in which the rapper fantasized about participating in the Columbine school shootings."

The Eminem song in question is "I'm Back" from The Marshall Mathers LP, published by Interscope Records in 2000:

Add an AK-47, a revolver, a nine a MAC-11 and it oughta solve the problem of mine and that’s a whole school of bullies shot up all at one time Cause (I’mmmm) Shady, they call me as crazy as the world was over this whole Y2K thing.

The 30-year-old defendant argues that the authorities never proved that he intended to threaten anybody or committed a "true threat." But a federal appeals court in September ruled that the standard of proof is whether a reasonable person—the target of the rant—would deem the online speech threatening.

Whatever a so-called "true threat" is, it's not protected under the First Amendment. Whether online or not, other forms of speech that do not enjoy the backing of the constitution include child pornography and obscenity.

Rap music scholars Erik Nielson of the University of Richmond and Charis E. Kubrin of UC Irvine told the justices last week that rap music doesn't always mean what it says.

"Rap music resides squarely within a long tradition of African American storytelling and verbal competition, one that privileges exaggeration, metaphor, and, above all, wordplay," the scholars said. "Underlying this tradition is the practice of signifying, or the obscuring of apparent meaning; in the process of signifying, ambiguity is prized, meaning is destabilized, and gaps between the literal and the figurative are intentionally exploited. This practice, along with rap’s dense slang and penchant for imbuing words with new meaning(s), makes it especially susceptible to misreading and misinterpretation." (PDF)

In his petition to the Supreme Court, Elonis' counsel said that the issue boils down to "whether a person can be convicted of the felony 'speech crime' of making a threat only if he subjectively intended to threaten another person or whether instead he can be convicted if he negligently misjudges how his words will be construed and a 'reasonable person' would deem them a threat."

Only one federal appeals court has sided with Elonis' contention that the authorities must prove that the person who made the threat actually meant to carry it out. Eight other circuit courts of appeal, however, have ruled that the standard is whether a "reasonable person" would conclude the threat was real.

"While social media and the Internet have become critical forums for individuals to freely share information and express their ideas, they have unfortunately also become tools for the government to monitor, control, and punish the populace for behavior and speech that may be controversial but are far from criminal," said John Whitehead, president of the Rutherford Institute, which weighed in on the case Friday with a brief (PDF) to the Supreme Court.

A decade ago, the Supreme Court described true threats in a Virginia cross-burning decision as "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." But the Supreme Court has never considered the issue in an online context.

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