When the Supreme Court hears the case of Anthony Elonis next week they will be jumping into one of the darkest, deepest wells of despair known to the human race: Facebook. At issue is the conviction of Elonis on charges of making threats against his ex-wife via the social network. If that doesn’t sound too serious, consider that he wound up serving more than three years of a 44-month sentence on the charge before being released. After his wife left him, taking their child with her, his Facebook postings were the sort of thing which many of us would find alarming to say the least.
“Fold up your PFA [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?”
In other postings, Elonis suggested that his son dress as “Matricide” for Halloween, with his wife’s “head on a stick” as a prop. He pondered making a name for himself by shooting up an elementary school and noted that there were so many nearby to choose from — “hell hath no fury like a crazy man in a kindergarten class.”
There’s enough of a question right up front as to whether or not a public Facebook posting qualifies as a “justifiable threat” which a reasonable person would interpret as meaning that they were facing imminent danger of injury or death. But to complicate matters further, Elonis posted disclaimers on the social network saying that he was engaging in the creation of rap music in the style of his favorite artist, Eminem. He even created an alternate rapper persona for himself named Tone Dougie He further clarified online that his fictitious lyrics not reflect the views, values, or beliefs of Anthony Elonis the person.
Was he feigning the persona of a rapper to cover himself so he could terrorize his ex online or was he really an Eminem fan (which the Supreme Court might consider a crime in and of itself) and aspiring rapper just drawing inspiration from events in his real life? The latter apparently wasn’t good enough for the lower level courts who convicted him, but I suppose the Supremes might lend it some credence.
But are Facebook posts protected speech? That seems like a given, within limits of copyright laws, etc. and yet there are limits which include preventing you from making serious threats against others. If the court doesn’t throw this out, though, will it open the floodgates to an avalanche of lawsuits against haters and trolls around the web? We may need another stimulus plan just to hire all the judges, attorneys and clerks required to take half the country before the bench.