Update: The First Amendment won on Monday, when the Supreme Court ruled eight to one that Anthony Elonis’ conviction for threatening his estranged wife and an FBI agent in Facebook posts should be overturned. Elonis spent more than three years in jail for posts on social media that threatened violence against the women in the form of rap lyrics. The case has been watched closely from both sides, by free speech advocates, activists and writers who receive daily threats over social media, and groups that work with victims of domestic violence.
According to NPR, eight justices agreed that the jury that convicted Elonis had used the wrong standard when it considered whether the posts were threats. Rather than debating whether a reasonable person would consider the comments threatening, the justices determined that the jury should have been considering whether or not Elonis intended to threaten anyone with them. Now, the case returns to a lower court for more proceedings.
This story was originally published on December 1, 2014.
A couple years ago, Anthony Elonis asked his Facebook feed “Did you know that it’s illegal for me to say I want to kill my wife?” He was talking about the order of protection that had just been levied against him by his soon-to-be-ex wife, Tara. After she and Elonis separated, he began posting explicit and violent messages about her on Facebook, like this one from October of 2010: “I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts."
After the order of protection, Elonis continued the violent posts against his wife and others (of an FBI agent who visited his home, he wrote he wished he'd "slit her throat"). He was ultimately convicted under a federal law that bans using "interstate communication" — in this case, the Internet — to threaten another person, and served more than three years in jail. He appealed his sentence, and today, it lands in the Supreme Court in a groundbreaking case over what kind of free speech is protected online.
His legal team is arguing that the threatening posts are protected under the First Amendment, and that Elonis never intended to actually hurt his wife (much like "Cannibal Cop" Gilberto Valle argued he never intended to kill and eat all those women). Elonis' attorney, John Elwood, told CNN that his client’s Facebook posts were a cathartic, therapeutic way to let off steam, likening them to the way that a rap artist might construct a murder fantasy in a song.
But, Elonis' posts weren’t exactly the ill-advised Dashboard Confessional lyrics shared on your college ex-boyfriend feed after a couple cocktails. These were terrifying, violent, and specifically aimed toward his ex, with details about her kids and where she lived. And yet, a strange crew of institutions — including the A.C.L.U., civil libertarians, and rap scholars — are supporting Anthony Elonis, in the name of free speech. “Words are slippery things,” says the A.C.L.U. brief on the case, “and one person’s opprobrium may be another’s threat.”
On the other side, Tara Elonis' supporters will claim that Anthony's free speech is secondary to her right to live free of fear. A similar logic has been used to prosecute stalkers, saying that even if they never intended to injure their victims physically, the fear they caused was disruptive enough.
The National Center for Victims of Crime, which released a brief in support of Tara, wrote, “victims of stalking are financially, emotionally and socially burdened by the crime regardless of the subjective intent of the speaker.” In other words, it doesn’t matter that Anthony Elonis may not have intended to go through with murder. When he violated Tara’s sense of safety, he crossed the line, and that should be enough.
There’s a lot at stake here, and none of it's black-and-white. Elonis has already served his time. But, the case promises to the be the first of many regarding the relatively new (at least for the Supreme Court) terrain of social media. How far does the First Amendment stretch, and what kinds of speech are truly worth protecting? Regardless of how the Court decides, a look back at one of Elonis' earliest posts — “I would have smothered your ass with a pillow and dumped your body in the backseat. Dropped it off in Road Creake and made it look like a rape and murder" — makes one thing seem clear; everyone should have the right to lead their lives free of speech like that.