Earlier today, SCOTUS agreed to consider the case of Elonis v. United States, which involves a series of allegedly threatening Facebook posts made by the petitioner during what would politely be called a low point in his life.
A Lonely Guy & His Computer Do Not A Good Pair Make
The case goes back to 2010, when the petitioner’s wife of seven years left him and took their children with her… and then he lost his job. That’s when he started writing things on Facebook, using Eminem song lyrics as his inspiration.
And as anyone who is familiar with the oeuvre of Eminem is probably aware, things can get a little unseemly and violent. Take, for example, this couplet: “Slut, you think I won’t choke no whore/ Til the vocal cords don’t work in her throat no more?”
But the petitioner claims he added disclaimers to these posts that he was using a fictional persona for “therapeutic” purposes.
Things got worse around Halloween of that year, when the man’s sister-in-law posted a photo on Facebook of a costume shopping trip she’d taken with the petitioner’s kids.
In response to the picture, the petitioner responded that his son “should dress up as matricide for Halloween,” while adding, “I don’t know what his costume would entail though. Maybe [his wife’s] head on a stick?”
But it was all okay, because he added the :p emoticon, implying it was all a joke.
His wife didn’t seem to think so, as she filed for a protection order against him the following month.
That Escalated Quickly
But rather than realize that maybe he should cool it on Facebook for a while, he instead went online and took the dialog from a Whitest Kids You Know sketch about how you can’t say “I want to kill the President,” but you can say “It’s illegal to say ‘I want to kill the President.'” Except he replaced “President” with “wife.”
He then ended that update with a question.
“Art is about pushing limits. I’m willing to go to jail for my constitutional rights. Are you?”
A subsequent bit of poetry not only comes across as a threat to his wife (who he accuses of bestiality) but also to law enforcement:
Fold up your PFA and put in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true
And prison time will add zeros to my
Which you won’t see a lick
Because you suck dog dick in front of children
And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff’s
Oh, and this gem that brings in the always-appropriate topic of school shootings:
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
And hell hath no fury like a crazy man in a
The only question is . . . which one?
This, not surprisingly, resulted in a visit from a female FBI agent, who would then become the subject of another Eminem-inspired rant about how it “Took all the strength I had not to turn the bitch ghost/ Pull my knife, flick my wrist, and slit her throat/Leave her bleedin’ from her jugular in the arms/of her partner.”
A Difference Of Opinions
The petitioner was later arrested and charged with violating Section 875(c) of Title 18 of the United States Code, which states, “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”
More precisely, he was indicted by a grand jury on five counts: threats to patrons and employees of his former employer, Dorney Park; threats to his wife; threats to police officers; threats involving a kindergarten class; and threats to an FBI agent.
In the 1969 Watts v. United States case — involving a young man who made a comment at a public rally about getting President Lyndon Johnson in his rifle sight — the Supreme Court held “true threats” are not Constitutionally protected free speech. The 2003 case of Virginia v. Black, in which KKK members argued that the mere burning of a cross was not threatening in itself, the court further defined a true threat 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.”
Believing that his Facebook posts were not actually statements of an intent to harm anyone, the petitioner sought to have the charges dismissed by the District Court, as the prosecution provided no actual proof that he intended on following through on any of his wild statements. He asked the court to instruct jurors to consider whether he truly meant to inflict harm on the subjects of his postings, or if he was just being kind of a jerk.
However, the court denied this request and instructed the jury to use the more objective test to determine a true threat: “[W]hen a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intent to inflict bodily injury or take the life of an individual.”
And so the petitioner was convicted on four of the five counts and was sentenced to 44 months behind bars and another three years of supervised release.
An appeals court sided with the lower court, again stating that the only proof required to determine whether a statement posed a true threat was if “a reasonable person would foresee that the statement would be interpreted” as a threat.
The Question At Hand
The petitioner argues that while the courts in this particular case have come down against him, the Ninth Circuit court of appeals, along with the supreme courts of Massachusetts, Rhode Island, and Vermont, have ruled that prosecutors must demonstrate intent to cause harm.
And so it will come down to SCOTUS to answer the question of “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.”