by Sean Begin
Supreme Court Chief Justice John G. Roberts Jr. was reciting unusual lyrics Monday during the court’s session. The song? “’97 Bonnie and Clyde” by Eminem.
The song depicts Eminem killing his wife and dumping her body into a lake. Justice Roberts was quoting the song and questioning if Eminem could be prosecuted for what he said, using the song as an example in the case currently before the justices, the first the they have considered regarding limits on speech in social media.
In December of 2010, Anthony Elonis was charged for writing violent and threatening messages about his ex-wife that he posted to Facebook. The threats included fantasy’s of killing her and dumping her body in a creek, similar to Eminem’s song quoted by Roberts.
Elonis was charged by federal law for using a form of interstate communication (in this case, the Internet) to theaten to injure another person. Elonis was conivected and served over three years in prison.
Elonis claims the posts were simply his attempt to mimic artists like Eminem, using rap as art and parody to help “deal with the pain” of losing his wife. “I never intended to theaten anyone. This is for me. This is therapeutic,” Elnois said of his posts.
As Emily Bazelon explains in an article in last Tuesday’s New York Times Magazine, the main issue for the justices to consider in this case is whose point of view matters: the speaker’s or the listener’s.
And while the threats made by Elonis against his wife are egregious, to uphold his conviction could mean a violation of First Amendment rights. The A.C.L.U. and other groups filed a brief in the case saying that online statements shouldn’t be “in the eye or ear of the beholder.”
“Words are slippery things, and one person’s opprobrium may be another’s threat,” the brief stated.
But while the A.C.L.U. is right to defend free speech, in this instance it’s hard to agree with them. Threats like these are a powerful force that can severely impact a person’s ability to live, as it did for Elonis’ wife, Tara, who felt so threatened by the posts that she filed a protection-from-abuse order against him.
The courts have used the term “true threats” for years as an exception for criminlaizing speech. In 2003, Justice Sandra Day O’Connor wrote that to do so is to protect people “from the fear of violence [and] from the disruption that fear engenders.”
“I felt like I was being stalked. I felt extremely afraid for mine and my children’s and my family’s lives,” Tara said in court.
The jury that convicted Elonis did so after being told to consider “if it was reasonable for him to see that Tara would interpret his posts as a serious expression of of intent to harm,” as Bazelon writes in her article.
The court must decide if a person’s right to violently express themselves online is more important than the potential harm that comes from the crippling fear of living with those threats. In the case, despite the power of the First Amendment, the justices should find in favor of Tara.
It’s simply to naïve in our current techno-culture to consider online speech different than everyday, face-to-face speech. Social media has become such an accepted form of communication that many companies release official statements through it before normal, traditional methods.
So simply not having the intent to harm by posting “I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts,” as Elonis did about his wife, doesn’t mean you shouldn’t face consequences for it.
Imagine if a bomb threat called in to a school was rapped over the phone and the offending parrty was allowed to walk away without facing charges because he claimed it was art and parody. There has to be a limit set in online speech for what is acceptable and what is criminal.
The Supreme Court has the power to make that decision now.