Threat Alert! The Danger of Artistic Expression in Social Media

Screen Shot 2014-09-05 at 7.00.25 PMBy Farah Ali

“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” Would you consider this a threat if you saw it posted on Facebook? What if it was meant to be a rap lyric? Would that still be a threat?

Anthony Elonis turned to posting on Facebook during some troubling times in October 2010. After his wife had left him and taken their children, Elonis began to post statements like the one above on his Facebook profile page. Although Elonis claimed his posts were therapeutic, a jury convicted Elonis under 18 U.S.C. § 875(c) for transmitting an interstate threat and he was sentenced to almost four years in prison. Elonis appealed his conviction to the Third Circuit, arguing that it violates his First Amendment rights. Specifically, Elonis argued that the Supreme Court’s ruling in Virginia v. Black had overturned the Third Circuit’s precedent in United States v. Kosma. In Kosma, the Third Circuit held that a statement is a true threat when a reasonable speaker would foresee the statement would be interpreted as a threat. Elonis argued that under Virginia v. Black, 18 U.S.C. § 875(c) requires a subjective intent to threaten. Elonis explained that his postings on Facebook were therapeutic and a form of artistic expression. Even in his posts, he referenced the First Amendment, and wrote disclaimers to that extent. In fact, Elonis and his wife were not friends on Facebook and therefore, he argued, he did not intend for her to see the posts or feel threatened. His wife, however, did see the statements and promptly got a restraining order.

The Third Circuit disagreed with Elonis and found that Black was not on point. Rather, in its opinion, it agreed with a majority of the Circuits that do not require a showing of a subjective intent to threaten. However, the Ninth Circuit took a different view in United States v. Cassel, and reasoned that Black required that the speaker subjectively intend the speech as a threat. The Third Circuit upheld Elonis’s conviction and he appealed to the Supreme Court.

The Supreme Court accepted Elonis’ petition on June 16, 2014 and hopefully will resolve the current circuit split. On August 18, 2014, rap music scholars submitted an amici curiae brief in support of Elonis. One of Elonis’s posts had used Eminem’s lyrics from his song, “I’m Back.” In those lyrics, Eminem fantasizes about participating in the Columbine shooting. The amicus brief argues that subjective intent of the petitioner must be taken into account because if jurors are unfamiliar with the rap genre or hold a negative bias, the lyrics could be wrongly interpreted as a threat rather than a form of expression. This would result in the punishment of artistic expression and violate the speaker’s First Amendment rights.

With the advancement of modern technology and the increased use of social media, it is important to establish the legal limits of artistic creativity. This case will help define one of those limits: what constitutes a “true threat” in cyberspace.


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