THE BLOG
06/17/2014 05:11 pm ET Updated Aug 17, 2014

Threats of Violence, Rap Lyrics and 'I Was Only Joking': The Supreme Court Weighs In

Vito Palmisano via Getty Images

It's a federal crime to communicate a true threat of violence in the United States. Such speech is not protected by the First Amendment's guarantee of free expression.

But what exactly constitutes a true threat of violence in the age of Twitter, YouTube and Facebook? The answer is anything but clear.

Some good news, however, for those seeking clarity and who push the boundaries of free speech arrived on Monday morning.

That's when the U.S. Supreme Court decided to take up a case involving Facebook postings that its author claims are merely rap lyrics, but that a federal appellate court last year determined constituted illegal threats of violence. The nation's high court has never before heard a social media threats case, but rather only low-tech ones involving things like cross burnings and speeches made at political rallies.

The case is called Elonis vs. United States. It is a hugely important dispute because we live in an era of verbal hyperbole and over-the-top rhetoric that often is communicated via social media.

We frequently say things that we don't really mean to be taken seriously. The problem is that our less-than-serious intentions may be lost in translation.

If someone writes a rap lyric that says, "I'd like to kill that son of a bitch," is one to take it seriously or, alternatively, to dismiss it as precisely the type of musical boasting and bombast we've come to expect from rappers over the years?

More importantly, should the intent of the speaker make any difference in deciding whether the message is an illegal threat or, conversely, should the only thing that matters be how a reasonable person who hears or receives that message might interpret it?

Examples of the supposed lyrics that landed Anthony Douglas Elonis, who claims he was inspired in part by rapper Eminem, a 44-month prison sentence are anything but pretty, but are they really threats of violence? Consider this one, which references a female FBI agent who interviewed Elonis at his home about prior postings:

You know your shit's ridiculous
when you have the FBI knockin' at yo' door
Little Agent Lady stood so close
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.

Here's another post, this one about his estranged wife who moved out and obtained a protection from abuse (PFA) order against Elonis:

Fold up your PFA and put it 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 threat jurisprudence.

As it turns out, we are all now going to get that education in true threats jurisprudence from the Supreme Court -- probably in late fall this year or early spring of 2015 -- thanks to Anthony Elonis.

Specifically, the Court decided to consider in Elonis whether, under both the First Amendment to the U.S. Constitution and the federal statute under which Anthony Elonis was prosecuted -- 18 U.S.C. § 875(c) -- the intent of the speaker makes any difference in deciding whether speech constitutes an illegal threat.

The answer is that the speaker's subjective intent about whether or not he intended his message to be threatening should, indeed, make a key difference. Why? Because the audience that receives the speech, including the jurors and judges who serve as surrogate audiences and who must guess at how some hypothetical "reasonable" person would interpret it, may not be familiar with the writing conventions deployed by the speaker.

As Professors Erik Nielson and Charis Kubrin wrote in the New York Times earlier this year about the use of rap lyrics as evidence of criminal activity, "prosecutors misrepresent rap music to judges and juries, who rarely understand the genre conventions of gangsta rap or the industry forces that drive aspiring rappers to adopt this style."

The U.S. Court of Appeals for the Third Circuit that ruled against Elonis held that his subjective intent -- whether or not he actually intended to threaten the FBI agent and his estranged wife -- did not matter. The only intent on the part of the Elonis that the appellate court said mattered was that he intended to communicate a message (that he intended for others to see it), not whether he intended the message to be threatening.

The words of Anthony Elonis are clearly offensive to many. But offensive speech, standing alone, has long been protected by the First Amendment.

The question now that the Supreme Court will decide is how much, if at all, the subjective intent of Anthony Elonis about the meaning of his Facebook postings matters in deciding if his speech is protected or whether his conviction stands.

But the Court's decision will have ramifications for anyone and everyone who claims to be only joking, rapping or just blowing off steam when engaging in violent-themed expression, be it online or in person. Our First Amendment rights hang in the balance.