Supreme Court and Anger Management

I heard a great piece this morning on NPR’s “Morning Edition” about the United States Supreme Court’s decision to review a case involving whether a person can be convicted of a crime for making threats on Facebook. And I suppose the more precise question is, what is a threat exactly?

The case is Elonis v. United States of America. Anthony Elonis is the petitioner. According to his own brief, Elonis was not dealing well with the breakup of his marriage. At one time he was observed with his head down on his desk crying. He soon became too upset to work regularly and ultimately lost his job. Elonis was a fan of rap music and apparently drew on that affinity to post “crude, spontaneous and emotional language expressing frustration.”

Included in those spontaneous Facebook rants was this post:

Did you know that it’s illegal for me to say I want
to kill my wife?
It’s illegal.
It’s indirect criminal contempt.
It’s one of the only sentences that I’m not allowed
to say.
Now it was okay for me to say it right then
because I was just telling you that it’s illegal for
me to say I want to kill my wife.
I’m not actually saying it.
I’m just letting you know that it’s illegal for me to
say that.
It’s kind of like a public service.
I’m letting you know so that you don’t accidently
go out and say something like that
Um, what’s interesting is that it’s very illegal to
say I really, really think someone out there should
kill my wife.
That’s illegal.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that’s its own sentence.
It’s an incomplete sentence but it may have
nothing to do with the sentence before that. So
that’s perfectly fine.
Perfectly legal.
I also found out that it’s incredibly illegal,
extremely illegal, to go on Facebook and say something
like the best place to fire a mortar launcher
at her house would be from the cornfield behind it
because of easy access to a getaway road and you’d
have a clear line of sight through the sun room.
Insanely illegal.
Ridiculously, wrecklessly, insanely illegal. Yet
even more illegal to show an illustrated diagram.
Insanely illegal.
Ridiculously, horribly felonious.
Cause they will come to my house in the middle of
the night and they will lock me up.
Extremely against the law.
Uh, one thing that is technically legal to say is
that we have a group that meets Fridays at my
parent’s house and the password is sic simper

Sometime later, Elonis added this gem:

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
kindergarten class
The only question is . . . which one?

Elonis drew the FBI’s attention, and agent Denise Stevens paid him a visit. That encounter inspired this:

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
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms
of her partner
So the next time you knock, you best be serving
a warrant
And bring yo’ SWAT and an explosives expert
while you’re at it
Cause little did y’all know, I was strapped wit’
a bomb
Why do you think it took me so long to get
dressed with no shoes on?
I was jus’ waitin’ for y’all to handcuff me and
pat me down
Touch the detonator in my pocket and we’re all
Are all the pieces comin’ together?
Sh*t, I’m just a crazy sociopath
that gets off playin’ you stupid f**ks like a fiddle
And if y’all didn’t hear, I’m gonna be famous
Cause I’m just an aspiring rapper who likes the
who happens to be under investigation for
cause y’all think I’m ready to turn the Valley into
But I ain’t gonna tell you which bridge is gonna
into which river or road
And if you really believe this sh*t
I’ll have some bridge rubble to sell you tomorrow

Based on those posts, Elonis was convicted under Section 875(c) of Title 18 of the United States Code provides:

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.

Elonis claimed he was simply blowing off steam, and had no intention of actually hurting anyone. The business about killing his wife, he claimed, was a takeoff on a comedy video by the group “the Whitest Kids You Know.” On that post, he included a link to the online video.

At his trial, Elonis asked the court to instruct the jury that he could only be convicted if the jury found he had “ a subjective intent” to threaten his ex-wife or the FBI agent. The trial court refused to give that instruction, ruling that the test is whether “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.” The court’s test is called an “objective standard” because it doesn’t depend on what the speaker actually intended. The jury convicted Elonis. The Third Circuit Court of Appeals affirmed.

And so the question for the Supreme Court is simple in some respects – “subjective” or “objective”? But while that may sound like “Coke” or “Pepsi” it’s got many more consequences. Does the subjective standard offer a truly dangerous person an SUV sized loophole? Imagine, for example, if someone posts: “Hey, listen to my new rap song I’m dedicating to my ex-wife. It goes like this: ‘I’m gonna kill you b#*#*!’ Of course, I mean no harm by these innocuous lyrics.” Is that all it takes to avoid prosecution under the subjective standard?

But now imagine Elonis is equally frustrated, but slightly more erudite. And he writes a post where he honestly talks about his anger and frustration with less crude language. Does the objective standard give a prosecutor enough leeway to indict and potentially convict him? Should it?

These are tough questions. It will be interesting to see how the Supreme Court resolves it. Elonis will be waiting anxiously for the decision, and I think most social media sites will as well.