AP Photo Justice Roberts: Rapper's delight in court? Chief justice questions whether rights might be curtailed in Internet speech case.

Chief Justice John Roberts will not ever be crowned the king of hip hop, but at a Supreme Court argument Monday he emerged as the court’s most vocal defender of rap music, quoting Eminem and repeatedly voicing concerns about the potential stifling of the vivid language used by many rappers.

The case before the court involves a Pennsylvania man charged with using Facebook to make rap-like threats against his estranged wife. The court is considering the limits of free speech involving violent rhetoric, while also exploring how much latitude individuals should have in the Internet era to issue threats they may not intend to carry out.


Defendant Anthony Elonis was convicted for threatening his ex-wife after posting on Facebook comments including: “There’s one way to love you but a thousand ways to kill you” and “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

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The dispute not only prompted Roberts to pick up the mantel for rap stars but also led lawyers to reference the racially charged violence in Ferguson, Missouri, the potential dangers to President Barack Obama and even an ambiguous White House threat to prominent Washington author Bob Woodward.

The court’s ruling in the case has the potential to set the bounds for free speech by rappers, as well as address the question of how the legal system handles threatening statements made online that may lack the nuance or impact of a similar remark made face-to-face.

The Obama administration argued that a conviction for illegal threats could be obtained whenever “a reasonable person” feels endangered, but Roberts suggested that might not be enough.

After Deputy Solicitor General Michael Dreeben maintained that rappers who were performing wouldn’t be prosecuted because their purpose was clearly “entertainment,” Roberts noted that that would appear to protect the famous while leaving the aspiring out in the cold.

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“How do you start out if you’re a rap artist?” the chief justice asked. He later quoted from an Eminem song about the rapper’s ex-wife drowning in a lake.

“Under your standard, could that be prosecuted?” Roberts asked.

“No,” Dreeben replied.

“Because Eminem said it instead of somebody else?” Roberts interjected.

“Eminem said it at a concert where people are going to be entertained. This is a critical part of the context,” Dreeben said. “It wasn’t as if he stated it to her in private or on a Facebook page after having received a protection from abuse order.”

He added, “In the context, I think any reasonable person would conclude at a minimum that there is ambiguity about these statements being a serious intention of an expression to do harm.”

Dreeben said that the jury could consider the “context” of the statements but shouldn’t have to establish that the defendant was actually intending to threaten someone.

Roberts also suggested that the government’s standard might not go far enough to protect speech specific audiences might see as art or nuance, particularly in rap or on the Internet.

At one point, the chief justice speculated aloud about whether the standard should be what “a reasonable person” would consider a threat or what “a reasonable teenager on the Internet” might think was threatening. The “reasonable teenager” remark prompted laughter from the courtroom, where many seemed to doubt the existence of such a phenomenon. .

However, Roberts plowed on.

“We’re talking about what subculture you’re looking at,” the chief justice declared. “If you have a statement made in the style of rap music as this one or several of these were, 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 or is — or not?

Dreeben said that if an individual puts threatening language onto a publicly viewable Facebook page or one to which many people have access, that might be considered a true threat while the same language shared with a few friends might not be.

“The speaker chooses their audience,” Dreeben said.

“If someone has a lot of friends on their Facebook page, then you’re going to apply a different standard?” the chief justice asked skeptically.

Roberts’s conservative colleague, Justice Samuel Alito, seemed the most hostile to giving rappers or aspiring rappers wide latitude for their public statements.

“This sounds like a road map for threatening a spouse and getting away with it,” Alito said. “You put it in rhyme.”

Justice Ruth Bader Ginsburg, considered by some the most liberal member of the court, didn’t sound too friendly to the idea of requiring that prosecutors show that someone who used threatening language actually intended to harm someone.

“How does one prove what’s in somebody else’s mind?” she asked.

Justice Antonin Scalia didn’t make clear what proof the government should need in threat cases, but he also made plain he sees little value in raps about killing a spouse, or perhaps in the genre as a whole.

“This is valuable First Amendment language that you think has to be protected, right?” he asked Elonis lawyer John Elwood.

Elwood said the government’s “reasonable person” standard threatened important speech and could even be used to punish those protesting in Ferguson if someone on Twitter posted a photo of law enforcement officers along with a Thomas Jefferson quote about the tree of liberty being refreshed with the blood of tyrants.

“Virtually any language that uses forceful rhetoric could be penalized,” Elwood warned.

“This language is not worth a whole lot,” Scalia said, referring to whatever violent speech might be chilled by the government’s proposal. “It may be a low standard, but to my mind, doesn’t eliminate a whole lot of valuable speech.”

It’s possible that Roberts was playing devil’s advocate in his pleas to consider the fate of rappers who might get accused of threats for what was merely intended as art. The justices’ decisions sometimes go in starkly different directions than their questions suggest. Some justices also ask questions raised by their clerks that may be more central to their clerks’ view of the case than to how the justices view the issues.

Roberts also sounded a bit skeptical when he repeated claims by Elonis’s lawyers that it might be “therapeutic” for him to vent his threats online or in music rather than actually carrying them out.

It appeared, however, that a majority of the justices were uncomfortable with the government’s position that a speaker could be found to have made a criminal threat as long as he understood the words he was saying and a reasonable person would view them as likely to cause fear of harm even if prosecutors don’t show the speaker intended to frighten anyone.

Much of the arguments consisted of a back-and-forth among the justices about how much more proof should be required.

Elwood argued that allowing prosecution for ambiguous statements not intended as a real threat could have resulted in the authorities going after a White House official for telling author Bob Woodward that he would “regret” making a certain claim about Obama’s stance in budget negotiations. The comment was e-mailed to Woodward by Obama economic adviser Gene Sperling in 2013, though Elwood didn’t mention Sperling by name.

“It’s a mild example, but the government wants to criminalize it,” Elwood said. “The government wants to impose a five-year felony literally any time there’s a disagreement.”

Dreeben warned the justices about the potential consequences of a decision to require proof of intent to threaten. He said doing so would undermine a separate federal law that makes it a crime to threaten the president and generally hasn’t been read to require that proof.

“It raises a question about the almost uniform, longstanding interpretation of the threat-against-the-president statute,” Dreeben said. “The president is unlikely to be put in fear by assassination threats … that the Secret Service intercepts. He’s made of harder stuff. But it’s highly disruptive to society.”